Kaiser v. Rodakowski

• Court: District Court, W.D. Washington
• Decided: August 11, 2020
• Docket: 3:20-cv-05373
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MICHAEL COLE KAISER, Case No. 3:20-cv-05373-BHS-TLF 7 Plaintiff, v. ORDER DENYING MOTION FOR 8 COUNSEL RODAKOWSKI, et al., 9 Defendants. 10

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

5 ability to articulate the factual basis of his claim. Agyeman v. Corrections Corp. of 6 America, 390 F.3d 1101, 1103 (9th Cir. 2004). That a pro se litigant may be better 7 served with the assistance of counsel is not the test. Rand, 113 F.3d at 1525. 8 Plaintiff states in his motion that he does not have the resources to pay for an 9 attorney. Dkt. 13. The inability to obtain counsel due to cost or lack of availability, 10 however, does not constitute an exceptional circumstance that necessarily requires the 11 appointment of counsel. 12 Plaintiff also states he needs assistance and advice on how to proceed with his 13 legal action. Dkt. 13. However, this general assertion does not establish exceptional 14 circumstances that warrant the appointment of counsel. The fact that a pro se litigant

15 may be better served with the assistance of counsel is not the test. Rand, 113 F.3d at 16 1525. 17 Plaintiff also has not shown he is unable to articulate his claims pro se. Plaintiff 18 has successfully filed several documents, including a serviceable complaint and this 19 motion in which he has thus-far demonstrated an adequate ability to articulate the 20 factual and legal basis of his claims. Further, at this early stage of the action where 21 defendants have not yet filed an answer to the complaint, plaintiff has also not 22 demonstrated a likelihood of success on the merits. Nor, at this point, do plaintiff’s 23

24 1 claims alleging inadequate medical care by DOC staff in changing plaintiff’s psychiatric 2 medications, appear to the Court to be particularly complex. 3 In sum, plaintiff fails to demonstrate exceptional circumstances warranting 4 appointment of counsel. Plaintiff’s motion for appointment of counsel (Dkt. 13) therefore,

5 is hereby DENIED without prejudice. The Clerk shall send a copy of this Order to the 6 parties. 7 Dated this 11th day of August, 2020. 8 9 A 10 Theresa L. Fricke United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24