Griepsma v. Andersen

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JAMES DAVID GRIEPSMA, Case No. C21-302 LK-TLF 7 Plaintiff, v. ORDER DENYING PLAINTIFF’S 8 MOTION TO APPOINT CHRISTIAN J ANDERSEN, COUNSEL 9 Defendants. 10

11 This matter comes before the Court on plaintiff’s motion for appointment of 12 counsel. Dkt. 158. Plaintiff is proceeding in forma pauperis. For the reasons discussed 13 below, plaintiff’s request is denied without prejudice. 14 A plaintiff has no constitutional right to appointed counsel in an action under 42 15 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also 16 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 17 (“[a]ppointment of counsel under this section is discretionary, not mandatory.”). In 18 “exceptional circumstances,” the Court may appoint counsel for indigent civil litigants 19 pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 20 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 21 The Court must evaluate both “the likelihood of success on the merits [and] the 22 ability of the petitioner to articulate his claims pro se in light of the complexity of the 23 legal issues involved”, to make an assessment whether exceptional circumstances 24 show that counsel should be appointed. Wilborn v. Escalderon, 789 F.2d 1328, 1331 1 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff 2 must plead facts that show he has an insufficient grasp of his case or the legal issue(s) 3 involved, as well as an inadequate ability to articulate the factual basis of his claim. 4 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

5 Although a pro se litigant may be better served with the assistance of counsel, that is 6 not the test. Rand, 113 F.3d at 1525. 7 Here, plaintiff filed his complaint pro se and has demonstrated an ability to 8 articulate his claims pro se in a clear fashion understandable to this Court. Plaintiff’s 9 allegations indicate that this is not a complex case involving complex facts or law. 10 In addition, plaintiff presents no evidence to show that he is likely to succeed on 11 the merits of his case. While plaintiff may not have vast resources or legal training, he 12 meets the threshold for a pro se litigant. Plaintiff contends that he does not have higher 13 education, but this alone is not sufficient to require appointment of counsel. See Wood 14 v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (noting that contended exceptional

15 factors were “difficulties which any litigant would have in proceeding pro se”). 16 Thus, plaintiff fails to show either inability to present his claims to this Court 17 without counsel or that exceptional circumstances require the Court to appoint counsel 18 at this stage. See generally, Mallard v. U.S. Dist. Court for Southern dist. of Iowa, 490 19 U.S. 296, 310 (1989) (28 U.S.C. § 1915 does not allow a federal court to coercively 20 appoint counsel); James v. Eli, 889 F.3d 320, 330-331 (7th Cir. 2018) (en banc) (district 21 courts may ask, but not compel, a lawyer to represent an indigent litigant). 22 23

24 1 The Court DENIES the motion (Dkt. 158) without prejudice. Plaintiff will be 2 allowed to renew this motion if, later in the proceedings, exceptional circumstances 3 would require appointment of counsel. 4 The Clerk shall send a copy of this Order to plaintiff.

5 6 Dated this 8th day of June, 2022. 7 8 A 9 Theresa L. Fricke 10 United States Magistrate Judge

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