Kirkham v. City of Bellingham

Opinion

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WESTERN DISTRICT OF WASHINGTON 7 RICHARD ARTHUR KIRKHAM, 8 Plaintiff, Case No. C24-1625-DGE-SKV 9 v. ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND 10 CITY OF BELLINGHAM, et al., ORDER OF INDIGENCY AND RENOTING MOTION FOR 11 Defendants. INJUNCTION 12

13 Plaintiff, proceeding pro se in this 42 U.S.C. § 1983 civil rights action relating to events 14 surrounding his arrest by the Bellingham Police Department, see Dkt. 4, filed a Motion for 15 Appointment of Counsel, Order of Indigency, and Injunction, Dkt. 12. Now, having considered 16 the motion, the Court finds as follows: 17 (1) In his motion, Plaintiff indicates his inability to afford counsel and his indigency. 18 Dkt. 12. Plaintiff states that, while he “can clearly articulate his claims to this Court pro se,” he 19 is unable to access and preserve evidence, protect himself, or communicate with experts or with 20 the Court in any way other than writing. Id. at 3. Plaintiff further asserts that exceptional 21 circumstances warranting the appointment of counsel exist because, inter alia, evidence exists 22 proving his claim of excessive force during his arrest, his access to the court is hindered due to 23 unrelated phone restrictions, evidence related to his case has been tampered with and replaced

ORDER DENYING MOTIONS FOR 1 with “‘deep fake’” footage, he fears for his safety, and he cannot verify his assertions of altered 2 evidence without the assistance of counsel. Id. at 4-6. 3 Plaintiff is advised that there is no right to have counsel appointed in cases brought under 4 § 1983. Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a

5 party proceeding in forma pauperis (IFP), it may do so only upon a showing of exceptional 6 circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of 7 exceptional circumstances requires an evaluation of both the likelihood of success on the merits 8 and the ability of the individual to articulate his claims pro se in light of the complexity of the 9 legal issues involved. Id. The Court previously denied a motion from Plaintiff requesting the 10 appointment of counsel, noting he was not proceeding IFP and had not demonstrated exceptional 11 circumstances. Dkt. 8. The Court, for the reasons set forth below, reaches the same conclusion 12 in relation to Plaintiff’s second motion seeking the appointment of counsel. 13 A litigant seeking to proceed IFP must file an affidavit that includes a statement of assets 14 and that the person is unable to pay fees. 28 U.S.C. § 1915(a)(1). Pursuant to Local Civil Rule

15 (LCR) 3(c), a party seeking to proceed IFP under 28 U.S.C. § 1915 shall complete the IFP 16 application “approved for use in this district for the specific type of case” and a written consent 17 for payment of costs form. LCR 3(c)(1)-(2). Here, the declaration submitted by Plaintiff in 18 support of his renewed motion for appointment of counsel, Dkt. 13, does not satisfy LCR 3(c) or 19 otherwise provide the information required by the Court for consideration of the request to 20 proceed IFP. Accordingly, Plaintiff’s request for an order of indigency, Dkt. 12, is DENIED. 21 Nor does Plaintiff demonstrate exceptional circumstances warranting the appointment of 22 counsel. Plaintiff’s incarceration and the associated limitations are not exceptional 23 circumstances. They are, instead, the type of difficulties encountered by many pro se litigants.

ORDER DENYING MOTIONS FOR 1 Also, Plaintiff’s submissions to this Court refute any contention that he is unable to articulate his 2 claims pro se. The Court further finds the record in this matter insufficient to determine whether 3 Plaintiff is likely to succeed on the merits of any of his claims. The Court, finally, finds 4 insufficient information to consider Plaintiff’s allegations regarding evidence tampering, “‘deep

5 fake’” footage, and fears for his safety. For these reasons, Plaintiff’s second motion requesting 6 the appointment of counsel, Dkt. 12, is DENIED. 7 (2) Plaintiff additionally requests that the Court issue an injunction requiring 8 Defendants to preserve and provide evidence. The Court, as noted above, finds the information 9 before the Court insufficient to consider Plaintiff’s allegations as to evidence tampering and 10 preservation. The Court also notes that it only recently effectuated service on Defendants and 11 received a notice of appearance of counsel on their behalf. See Dkts. 10-11, 14. The Court, in 12 the interest of acquiring further information and argument in relation to Plaintiff’s allegations, 13 finds a response from Defendants necessary. Accordingly, Plaintiff’s construed motion for 14 preliminary injunctive relief, Dkt. 12, is herein RENOTED for consideration on March 27,

15 2025. Defendants shall file a response to this motion on or before March 20, 2025, and Plaintiff 16 may file a reply on or before March 27, 2025. 17 (3) The Clerk is directed to send copies of this Order to Plaintiff and to the Honorable 18 David G. Estudillo. The Clerk is further directed to send to Plaintiff a copy of this Court’s IFP 19 Application for Prisoners Filing Civil Complaints with instruction sheet. 20 Dated this 27th day of February, 2025. 21 A United States Magistrate Judge 23

ORDER DENYING MOTIONS FOR