Garnica-Melgoza v. Fortney

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. 2:22-cv-00392-BHS-JRC Plaintiff, ORDER ON MOTIONS RE v. COUNSEL ADAM FORTNEY, et al., Defendants. This matter is before the Court on plaintiff’s “motion for order allowing assistance from Louis Thibodeaux” and plaintiff’s motion for appointment of counsel. See Dkts. 19–21. Defendants Fortney and Kendall oppose both motions and move the Court for an order prohibiting Louis Thibodeaux from acting as an attorney for plaintiff in this matter. See Dkts. 24, 25, 27, 28. Plaintiff is a pro se prisoner, currently housed at the Washington State Penitentiary, who seeks to have the Court appoint pro bono counsel or allow Louis Thibodeaux, a non-attorney prisoner, to assist plaintiff with this action. The Court previously denied plaintiff’s motion to appoint counsel and plaintiff has not demonstrated a change in circumstances to warrant a different outcome. Also, Mr. Thibodeaux is not an attorney, so he may not engage in the practice of law on plaintiff’s behalf. Therefore, the Court denies plaintiff’s motions. Plaintiff initiated this action on April 1, 2022, when he filed a complaint alleging that

defendants used excessive force when they arrested him on October 31, 2018. See Dkt. 5. That same day, plaintiff moved the Court to appoint pro bono counsel to represent him, which the Court denied. See Dkts. 6, 7. On May 20, 2022, defendants Fortney and Kendall filed a motion to dismiss. See Dkt. 16. On May 24, 2022, plaintiff filed the motions currently before this Court. See Dkts. 19 (motion for order allowing assistance from Louis Thibodeaux), 21 (motion for court-appointed counsel). Defendants Fortney and Kendall oppose plaintiff’s motions. See Dkts. 24, 25, 27, 28. I. Motion for Assistance from Mr. Thibodeaux

Plaintiff filed a motion asking the Court to allow Mr. Thibodeaux to assist plaintiff with this action. See Dkt. 19. However, although an individual may seek the assistance of non- attorneys, the individual cannot appear or proceed in an action through non-attorneys. See Storseth v. Spellman, 654 F.2d 1349, 1355 (9th Cir. 1981) (“[While prisoner] writ writers may assist other prisoners in the preparation . . . and filing of petitions for post-conviction relief[,] . . . no authority authorizes them to engage in the practice of law by filing papers with the court”) (internal citations and quotations omitted); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in propria persona has no authority to represent anyone other than himself.”). Mr. Thibodeaux is currently incarcerated with plaintiff and is not an attorney or a party to this action. See Dkt. 19 at 2. Despite being a non-attorney, defendants inform the Court that Mr. Thibodeaux intends to depose defendants, and conduct other discovery, on plaintiff’s behalf. See Dkt. 24 at 2–3. The Court does not grant Mr. Thibodeaux any status in this action and does not authorize him to represent plaintiff in discovery or any other aspect of this case that requires an

attorney. Accordingly, the Court denies plaintiff’s motion. Dkt. 19. The Court further orders that Mr. Thibodeaux may not act as an attorney on plaintiff’s behalf. This includes noting, taking, or attending depositions, and communicating with defendants on plaintiff’s behalf regarding this action. II. Motion for Appointment of Counsel The Court next considers plaintiff’s motion to appoint counsel. See Dkt. 21. This is plaintiff’s second request for counsel in this matter. See Dkt. 6. As the Court previously informed plaintiff, there is no constitutional right to appointed counsel in a § 1983 civil action. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); U.S. v. $292,888.04 in U.S. Currency,

54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the Court must evaluate both “the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp of his case or the legal issues involved and an inadequate ability to articulate the factual basis of his claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Here, the Court has already determined that plaintiff can adequately articulate himself, that the issues in this case do not appear to be complex, and that plaintiff has not shown a likelihood of success on the merits. See Dkt. 9 at 2. Plaintiff’s motion does not allege that any

circumstances have changed since the Court’s last order denying appointment of counsel. See Dkts. 9, 21. Therefore, plaintiff’s motion for appointment of counsel is denied. However, the Court denies the motion without prejudice, meaning plaintiff can file again upon a proper showing of exceptional circumstances. The Court denies plaintiff’s motion for an order allowing assistance from Louis Thibodeaux and plaintiff’s motion for appointment of counsel. Dkts. 19, 21. The Court further orders that Mr. Thibodeaux may not act as an attorney on plaintiff’s behalf. This includes noting, taking, or attending depositions, and communicating with defendants on plaintiff’s behalf.

Dated this 15th day of June, 2022. A J. Richard Creatura Chief United States Magistrate Judge