Johnston v. Jennings

• Court: District Court, W.D. Washington
• Decided: June 13, 2023
• Docket: 3:22-cv-05394
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JACOB ANDREW JOHNSTON, CASE NO. 3:22-cv-05394-RAJ-GJL 11 Plaintiff, v. ORDER GRANTING MOTION TO 12 AMEND AND DENYING MOTION CRYSTAL JENNINGS, et al., FOR COUNSEL 13 Defendants. 14

15 This matter is before the Court on referral from the district court and on Plaintiff’s 16 motions to amend the Complaint (Dkt. 57) and to appoint counsel (Dkt. 58). Defendants have 17 filed a response to Plaintiff’s motion for counsel (Dkt. 59) and Plaintiff has not filed a reply. 18 Defendants do not oppose Plaintiff’s motion to amend his Complaint. Dkt. 61. 19 A. Motion to Amend (Dkt. 57) 20 Plaintiff seeks to amend his Complaint. Dkt. 57. Pursuant to this Court’s prior orders 21 (Dkts. 45, 56), Plaintiff has filed a proposed Amended Complaint. Dkt. 57-1. Defendants 22 (without conceding the Amended Complaint states a claim upon which relief can be granted) do 23 not oppose the amendment. Dkt. 61. 24 1 Where, as here, a responsive pleading has been filed, a plaintiff may no longer amend the 2 complaint as of right. Fed. R. Civ. P. 15(a). Instead, 3 [A] party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. 4 Fed. R. Civ. P. 15(a). Here, Defendants have filed a written response stating they do not object to 5 the amendment. Dkt. 61. 6 Accordingly, the Court GRANTS plaintiff’s motion to amend. The Court will issue a 7 separate order directing service upon the newly added Defendants. Also, in light of the addition 8 of new Defendants, the Court suspends the current case schedule and will issue a new schedule 9 after the newly added Defendants have filed an Answer. 10 B. Motion for Counsel (Dkt. 58) 11 Plaintiff seeks the appointment of counsel, on the ground that he is indigent. Dkt. 58. 12 Defendants oppose the motion. Dkt. 59. 13 There is no constitutional right to appointed counsel in a § 1983 civil action. Storseth v. 14 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. 15 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is 16 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may 17 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 18 U.S.C. § 1915(d)). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other 19 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the 20 Court must evaluate both “the likelihood of success on the merits [and] the ability of the 21 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” 22 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 23 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp 24 1 of his case or the legal issues involved and an inadequate ability to articulate the factual basis of 2 his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 3 Although a pro se litigant may be better served with the assistance of counsel, that is not the test. 4 Rand, 113 F.3d at 1525.

5 Plaintiff has not demonstrated that extraordinary circumstances exist requiring the 6 appointment of counsel. Plaintiff cites only his indigency, but that is not an extraordinary 7 circumstance that sets him aside from other prisoner plaintiffs. See Siglar v. Hopkins, 822 F. 8 App’x 610, 612 (9th Cir. 2020) (denying appointment of counsel because plaintiff’s 9 “circumstances were not exceptionally different from the majority of the challenges faced by pro 10 se litigants”) (citations omitted). Moreover, Plaintiff has demonstrated a sufficient grasp of the 11 legal issues involved in this case, having filed a Complaint that passed this Court’s screening, 12 and multiple motions. In addition, at this stage of the litigation, the Court cannot determine 13 whether Plaintiff is likely to prevail on the merits. 14 This case does not, at this time, present the extraordinary circumstances required for the

15 appointment of counsel. Therefore, plaintiff’s request for counsel (Dkt. 91) is DENIED without 16 prejudice, meaning that plaintiff may renew the motion at a later date upon a showing of 17 exceptional circumstances. 18 C. Request to File Sworn Statement (Dkt. 58) 19 Plaintiff’s motion for counsel also includes a request to file an unidentified statement 20 under penalty of perjury. Dkt. 58 at 2. Plaintiff asserts that such a statement “may be needed” to 21 defend against a motion for summary judgment. Id. 22 There is no need for Plaintiff to file such a statement at this time. Defendants have not 23 brought a motion for summary judgment. If they file such a motion, Plaintiff will have an

24 1 opportunity to respond and to submit evidence, including (if he chooses) a Declaration 2 containing his sworn statement. Plaintiff does not require leave of the Court to file a response 3 after a motion for summary judgment is filed. However, because Defendants have not filed such 4 a motion, any response would be premature at this time. Plaintiff’s motion to file a sworn

5 statement is therefore DENIED as premature. 6 II. CONCLUSION 7 The Court therefore ORDERS as follows: 8 1. Plaintiff’s motion to amend his Complaint (Dkt. 57) is GRANTED. The Clerk is 9 directed to docket the Amended Complaint (Dkt. 57-1) as the operative complaint in this matter. 10 2. The deadlines in the Pretrial Scheduling Order in this matter (Dkt. 33) are 11 SUSPENDED. The Court will issue a new Scheduling Order after the newly named Defendants 12 have appeared and answered. 13 3. Plaintiff’s motion for counsel (Dkt. 58) is DENIED without prejudice. 14 4. Plaintiff’s request to file a sworn statement (Dkt. 58 at 2) is DENIED as

15 premature. 16 Dated this 13th day of June, 2023. 17 A 18 19 Grady J. Leupold United States Magistrate Judge 20 21 22 23 24