Fernandez-Medina v. Olivarez

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ROILAND FERNANDEZ-MEDINA, CASE NO. 3:20-cv-05703-RAJ-JRC 11 Plaintiff, ORDER 12 v. 13 OLIVAREZ, 14 Defendants. 15 16 Before the Court is plaintiff’s motion for appointment of counsel. Dkt. 9. Defendants did 17 not file a response. 18 There is no constitutional right to appointed counsel in a § 1983 civil action, and whether 19 to appoint counsel is within this Court’s discretion. Storseth v. Spellman, 654 F.2d 1349, 1353 20 (9th Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 21 1995). Appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1) requires 22 “exceptional circumstances.” See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing 23 former 28 U.S.C. § 1915(d) (1996)), overruled on other grounds, 154 F.3d 952 (1998). To 24 1 decide whether exceptional circumstances exist, the Court must evaluate “both ‘the likelihood of 2 success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of 3 the complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 4 Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these

5 factors is dispositive and both must be viewed together[.]” Id. 6 Plaintiff alleges that he has attempted to contact attorneys by phone, but he is not able to 7 afford counsel. Dkt. 6. Plaintiff further contends his imprisonment will greatly limit his ability to 8 litigate this matter, he has limited access to the law library, he has limited formal education, and 9 counsel would enable plaintiff to present evidence and examine witnesses. Dkt. 6 at 3. 10 Here, plaintiff has not shown that he is likely to succeed on the merits of his case or 11 shown an inability to articulate his claims in a fashion that is understandable to the Court. His 12 pleadings before the Court demonstrate that he is able to understand the legal standards 13 applicable to his § 1983 claims and communicate the factual basis for those claims. See Dkt. 4, 5, 14 6, 7. In addition, this is not a complex case nor do plaintiff’s § 1983 claims entitle him to

15 representation. See Storseth, 654 F.2d at 1353. “Most actions require development of further 16 facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 17 facts necessary to support the case. If all that was required to establish successfully the 18 complexity of the relevant issues was a demonstration of the need for development of further 19 facts, practically all cases would involve complex legal issues.” Wilborn, 789 F.2d at 1331. 20 21 22 23

24 1 Thus, Court finds that plaintiff has not shown the exceptional circumstances required for 2 the appointment of counsel. Plaintiff’s motion to appoint counsel (Dkt. 9) is therefore denied 3 without prejudice. 4

5 Dated this 12th day of November, 2020. 6 7 A 8 J.Richard Creatura 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24