Lakey v. State of Washington

• Court: District Court, W.D. Washington
• Decided: August 6, 2020
• Docket: 3:20-cv-05557
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LINDSEY LAKEY, CASE NO. 3:20-cv-05557-RBL-JRC 11 Plaintiff, ORDER 12 v. 13 STATE OF WASHINGTON, 14 Defendants. 15 16 This matter is before the Court on several motions filed by plaintiff: (1) first motion to 17 appoint counsel (Dkt. 5); (2) motion for change of venue (Dkt. 10); and (3) second motion to 18 appoint counsel (Dkt. 26). For the reasons discussed below, the Court denies all three motions. 19 Also pending is defendant State of Washington’s motion to dismiss, which will be addressed in a 20 separately filed report and recommendation. See Dkt. 21. 21 As an initial matter, the Court notes that plaintiff has filed all three motions in the form of 22 letters to the Clerk and/or Court. Dkt. 5, 10, 26. In the interests of justice, the Clerk has docketed 23 the letters as motions. See id. However, plaintiff is advised that in the future, any plaintiff seeks 24 1 relief from this Court, he must do so in the form of a motion setting out the underlying facts and 2 specific relief sought. The motion must be directly related to the claims set forth in the 3 complaint. The motion must be filed, served on defense counsel, and noted for hearing in 4 accordance with the Federal Rules of Civil Procedure before the Court will consider the merits of

5 any such request. 6 1. Motions to Appoint Counsel (Dkt. 5, 26) 7 Plaintiff, who proceeds pro se and in forma pauperis and who is currently housed at the 8 Thurston County Jail, requests the appointment of counsel to represent him in his action brought 9 under 42 U.S.C. § 1983. See Dkts. 5, 26. In June 2020, the Court directed service of plaintiff’s 10 complaint, and a motion to dismiss filed by certain defendants is currently pending. See Dkt. 4, 11 6. 12 In the first motion, Dkt. 5, plaintiff submitted a letter inquiring about whether an attorney 13 would be appointed in this case this case. Plaintiff attached pictures to the letter, in what the 14 Court construes as an argument to the merits of his case. See Dkt. 5. In the second motion,

15 plaintiff renews his request through a second letter, but offers no argument in support. Dkt. 26. 16 There is no constitutional right to appointed counsel in a § 1983 civil action, and whether 17 to appoint counsel is within this Court’s discretion. Storseth v. Spellman, 654 F.2d 1349, 1353 18 (9th Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 19 1995). Appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1) requires 20 “exceptional circumstances.” See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing 21 former 28 U.S.C. § 1915(d) (1996)), overruled on other grounds, 154 F.3d 952 (1998). To 22 decide whether exceptional circumstances exist, the Court must evaluate “both ‘the likelihood of 23 success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of

24 1 the complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 2 Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these 3 factors is dispositive and both must be viewed together[.]” Id. 4 At this time, plaintiff has not shown, nor does the Court find, this case involves complex

5 facts or law. Plaintiff has also not shown he is likely to succeed on the merits of his case or 6 shown an inability to articulate the factual basis of his claims in a fashion understandable to the 7 Court. For example, plaintiff clearly articulated his claims in his Complaint. See Dkt. 4. The 8 Court also notes “[p]laintiff’s incarceration and limited access to legal materials are not 9 exceptional factors constituting exceptional circumstances that warrant the appointment of 10 counsel. Rather, they are the type of difficulties encountered by many pro se litigants.” Dancer v. 11 Jeske, 2009 WL 1110432, *1 (W.D. Wash. Apr. 24, 2009). While plaintiff may be able to better 12 litigate this case with appointed counsel, that fact, alone, does not establish an extraordinary 13 circumstance warranting the appointment of counsel. See Rand, 113 F.3d at 1525; Wilborn, 789 14 F.2d at 1331.Therefore, the Court finds that plaintiff has failed to show the appointment of

15 counsel is appropriate at this time. For all these reasons, the Court denies the first and second 16 motions to appoint counsel (Dkt. 5, 26) without prejudice. 17 2. Motion for Change of Venue (Dkt. 10) 18 Plaintiff, who is a pretrial detainee at Thurston County Jail, moves for the Court to 19 transfer his ongoing criminal case to another jurisdiction. Dkt. 10. Plaintiff alleges he cannot get 20 a fair trial in Thurston County. Id. 21 First, an “action lying at the core of habeas corpus is one that goes directly to the 22 constitutionality of the prisoner’s physical confinement itself and seeks either immediate release 23 from that confinement or the shortening of its duration. With regard to such actions, habeas

24 1 corpus is now considered the prisoner’s exclusive remedy.” Preiser v. Rodriguez, 411 U.S. 475, 2 503 (1973) (internal quotation omitted). “A civil rights action, in contrast, is the proper method 3 of challenging conditions of confinement.” Badea v. Cox, 931 F.3d 573, 574 (9th Cir. 1991). 4 Here, plaintiff filed a civil rights action challenging the use of force during his arrest, but

5 now appears to challenge the legality of his current detention and upcoming trial. See Dkt. 4, 10. 6 Plaintiff’s requested relief, which challenges the fact of his custody, is properly raised in a 7 habeas petition, not in a civil rights action under § 1983 and is not related to the facts alleged in 8 the underlying complaint. See id. Therefore, this Court does not have jurisdiction over plaintiff’s 9 request related to his ongoing state criminal proceedings in this case. Moreover, plaintiff is 10 advised that even if he filed a habeas corpus petition raising the same claims, federal court 11 abstention from interference with pending state judicial proceedings is appropriate under the 12 Younger abstention doctrine if: (1) the proceedings are ongoing; (2) the proceedings implicate 13 important state interests; and (3) there is an adequate opportunity in the state proceedings to raise 14 federal questions. See Younger v. Harris, 401 U.S. 37 (1971); Dubinka v. Judges of the Superior

15 Ct., 23 F.3d 218, 223 (9th Cir. 1994); Middlesex County Ethics Comm’n v. Garden State Bar 16 Ass’n, 457 U.S. 423, 432 (1982). 17 Accordingly, plaintiff’s motion for change of venue (Dkt. 10) is denied. 18 Dated this 6th day of August, 2020. 19

20 A 21 J. Richard Creatura 22 United States Magistrate Judge

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