Gantt v. Rhoton

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MATTHEW GANTT, Case No. C19-5352 RBL-TLF 7 Plaintiff, v. ORDER DENYING MOTION TO 8 APPOINT COUNSEL JANET RHOTON, 9 Defendants. 10

11 This matter comes before the Court on plaintiff’s motion for appointment of 12 counsel. Dkt. 65. The Court has considered the record and finds that plaintiff’s motion 13 for counsel should be denied at this time, without prejudice. Plaintiff will be allowed to 14 renew this motion if, at a later time in the proceedings, exceptional circumstances would 15 require appointment of counsel. 16 No constitutional right exists to appointed counsel in a § 1983 action. Storseth v. 17 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 18 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this 19 section is discretionary, not mandatory.”). In “exceptional circumstances,” a district 20 court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). 21 Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 22 F.3d 952 (9th Cir. 1998). 23 24 1 To decide whether exceptional circumstances exist, the Court must evaluate both 2 “the likelihood of success on the merits [and] the ability of the petitioner to articulate his 3 claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 4 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d

5 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient 6 grasp of his case or the legal issue involved, and an inadequate ability to articulate the 7 factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 8 1103 (9th Cir. 2004). That a pro se litigant may be better served with the assistance of 9 counsel is not the test. Rand, 113 F.3d at 1525. 10 Here, plaintiff filed his complaint pro se and has demonstrated an ability to 11 articulate his claims pro se in a clear fashion understandable to this Court. Plaintiff’s 12 allegations indicate that this is not a complex case involving complex facts or law. 13 In addition, plaintiff presents no evidence to show that he is likely to succeed on 14 the merits of his case. While plaintiff may not have vast resources or legal training, he

15 meets the threshold for a pro se litigant. Plaintiff contends that (1) he cannot afford 16 counsel; (2) he has limited legal knowledge and access to the prison law library; (3) his 17 trial would likely involve conflicting testimony and evidence, for which counsel would be 18 helpful; (4) plaintiff would not be able to represent himself due to the deterioration of his 19 mental health; (5) plaintiff believes his case has evidence to show he is likely to 20 succeed on the merits of his case. Dkt. 65, at 2. These are not sufficient to require 21 appointment of counsel. 22 Except for plaintiff’s claim to deteriorating mental health, none of these factors 23 burden plaintiff beyond other pro se litigants. See Wood v. Housewright, 900 F.2d 1332,

24 1 1335 (9th Cir. 1990) (declining to appoint counsel to assist with “difficulties which any 2 litigant would have in proceeding pro se”). Plaintiff’s demonstrated ability to litigate his 3 case before the Court thus far belies his claim that his mental health has rendered him 4 unable to articulate his claim. Thus, plaintiff has failed in his burden to demonstrate an

5 inability to present his claims to this Court without counsel or to show that exceptional 6 circumstances require the Court to appoint counsel at this stage. 7 As plaintiff has not shown appointment of counsel is appropriate at this time, the 8 motion for the appointment of counsel (Dkt. 65) is DENIED without prejudice. 9 Dated this 3rd day of February, 2020. 10 11 A 12 Theresa L. Fricke 13 United States Magistrate Judge

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