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 fourth motion for appointment of 12 counsel. Dkt. 77. Defendants have responded to plaintiff’s motion in opposition, with the 13 additional request that the Court impose sanctions if plaintiff should file “a similarly 14 baseless fifth claim.” Dkt. 82, at 7. The Court, finding this request premature, declines 15 to rule on the issue of sanctions. 16 The Court finds that plaintiff’s motion for counsel should be denied without 17 prejudice. Plaintiff will be allowed to renew this motion if, at a later time in the 18 proceedings, exceptional circumstances would require appointment of counsel. 19 No constitutional right exists to appointed counsel in a § 1983 action. Storseth v. 20 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 21 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this 22 section is discretionary, not mandatory.”). In “exceptional circumstances,” a district 23 court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). 24 1 Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 2 F.3d 952 (9th Cir. 1998). 3 To decide whether exceptional circumstances exist, the Court must evaluate both 4 “the likelihood of success on the merits [and] the ability of the petitioner to articulate his

5 claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 6 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 7 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient 8 grasp of his case or the legal issue involved, and an inadequate ability to articulate the 9 factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 10 1103 (9th Cir. 2004). That a pro se litigant may be better served with the assistance of 11 counsel is not the test. Rand, 113 F.3d at 1525. 12 Plaintiff filed his second amended complaint (Dkt. 76) pro se and has 13 demonstrated an ability to articulate his claims pro se in a clear fashion understandable 14 to this Court. Plaintiff’s allegations indicate that this is not a complex case involving

15 complex facts or law. Plaintiff has presented no evidence to show that he is likely to 16 succeed on the merits of his case. While plaintiff may not have vast resources or legal 17 training, he meets the threshold for a pro se litigant. 18 Plaintiff contends that (1) he cannot afford counsel; (2) he has limited legal 19 knowledge and access to the prison law library; (3) he has disabilities that leave him 20 with diminished mental capacity and would not be able to represent himself due to 21 “ongoing diminishing capacity”; (4) this case requires investigation which an attorney 22 would be better able to do than plaintiff in his incarcerated position; and (5) plaintiff 23 believes his case has evidence to show he is likely to succeed on the merits of his

24 1 case. Dkt. 77, at 2. These restate plaintiff’s prior contentions and are not sufficient to 2 require appointment of counsel. 3 The Court has previously held that none of these factors burden plaintiff beyond 4 other pro se litigants or render him unable to articulate his claim. Dkt. XX, at 3; see

5 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (declining to appoint 6 counsel to assist with “difficulties which any litigant would have in proceeding pro se”). 7 Plaintiff has not raised any facts indicating a change in his circumstances, and therefore 8 he has failed in his burden to demonstrate an inability to present his claims to this Court 9 without counsel or to show that exceptional circumstances require the Court to appoint 10 counsel at this stage. 11 As plaintiff has not shown appointment of counsel is appropriate at this time, the 12 motion for the appointment of counsel (Dkt. 77) is DENIED without prejudice. 13 Dated this 11th day of May, 2020. 14

15 A 16 Theresa L. Fricke 17 United States Magistrate Judge

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