Jackson v. Romero

Opinion

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KYNTREL TREVYONE JACKSON, No. 3:19-CV-5756-BJR-DWC 8

9 Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION AND 10 DENYING PLAINTIFF’S MOTION FOR HEIDI L. ROMERO, et al., PRELIMINARY INJUNCTION AND 11 Defendants. APPOINTMENT OF COUNSEL 12

13 This matter comes before the Court on a Report and Recommendation of Magistrate 14 Judge David W. Christel on Plaintiff’s Motion for Preliminary Injunction and Appointment of 15 16 Counsel. No objections to the Report and Recommendation have been filed. Having reviewed 17 the Report and Recommendation, the materials filed by the parties in support of and in 18 opposition to the motion, and the balance of the record, the Court finds and ORDERS as follows: 19 (1) The Court ADOPTS the Report and Recommendation (Dkt. No 70). 20 (2) Plaintiff’s request for a preliminary injunction (Dkt. No. 65) is DENIED for the 21 reasons set forth in the Report and Recommendation. 22 (3) Plaintiff’s request for appointment of counsel, which Plaintiff included in the pending 23 24 motion (Dkt. No. 65 at 2), is also DENIED. The Court finds that appointment of counsel for 25 Plaintiff is not warranted for the reasons set forth below. 26

1 1 In the pending motion, Plaintiff requested appointment of counsel based on his alleged 2 inability to conduct legal proceedings at the Washington Corrections Center (WCC). Dkt. No. 3 65 at 2. However, as the Report and Recommendation notes, Defendants have offered evidence 4 indicating that Plaintiff has been able to access the Court’s electronic filing system at WCC and 5 that numerous documents have been delivered directly to him at WCC. Dkt. No. 70 at 4-5. 6 Plaintiff has not offered evidence to dispute Defendants’ evidence, nor has he objected to the 7 finding in the Report and Recommendation that “the evidence tendered by Defendants belies 8 9 Plaintiff’s allegations to the contrary.” Dkt. No. 70 at 5. As a result, Plaintiff has not 10 demonstrated that appointment of counsel is necessary due to an inability to conduct legal 11 proceedings at WCC. 12 Plaintiff also has not demonstrated that appointment of counsel is warranted by 13 exceptional circumstances. See Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th 14 Cir. 2004) (noting that under 28 U.S.C. § 1915(e)(1), appointment of counsel for a person 15 16 proceeding in forma pauperis is granted only in exceptional circumstances). “A finding of 17 exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits 18 [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the 19 legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting 20 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). On the record before the Court, Plaintiff 21 has not demonstrated a likelihood of success on the merits of his claims. The motion before the 22 Court does not address the merits of Plaintiff’s claims, but instead focuses on his allegations 23 24 regarding barriers in litigating this case at WCC. In addition, a review of the record indicates 25 that the legal issues in this case are not overly complex, and that Plaintiff is quite capable of 26

2 1 articulating his claims as a pro se litigant. Therefore, the Court concludes there are not 2 exceptional circumstances to warrant appointment of counsel for Plaintiff. 3 (4) The Clerk is directed to send copies of this Order to Plaintiff, to counsel for 4 Defendants, and to the Honorable David W. Christel. 5 Dated this 28th day of January, 2021. 6 A 7

8 Barbara Jacobs Rothstein U.S. District Court Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26