Michalek v. Port Townsend Police Department

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 BRIAN JUDAH MICHALEK, CASE NO. 3:19-CV-6170-RJB-DWC 11 Plaintiff, ORDER GRANTING EXTENSION 12 v. AND DENYING COUNSEL 13 PORT TOWNSEND POLICE DEPARTMENT, et al., 14 Defendant. 15

Plaintiff Brian Judah Michalek, proceeding pro se and in forma pauperis, initiated this 16 civil rights Complaint pursuant to 42 U.S.C. § 1983. See Dkt. 1. Currently pending before the 17 Court are Plaintiff’s Motions for Appointment of Counsel (Dkt. 7, 9) and Motion for a 90 Day 18 Extension (Dkt. 9). After considering the relevant record, the Court denies Plaintiff’s Motion for 19 Counsel (Dkt. 7) and grants-in-part and denies-in-part Plaintiff’s Motion for Extension (Dkt. 9).1 20 21 22

23 1 Plaintiff’s Motion for Counsel also includes a motion for Court-appointed counsel. See Dkt. 9. The Court considered the request for court-appointed counsel contained in the Motion for Extension during consideration of the 24 Motion for Counsel. 1 I. Motions for Counsel (Dkt. 7, 9) 2 Plaintiff requests Court-appointed counsel. Dkt. 7, 9. No constitutional right to appointed 3 counsel exists in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see 4 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment

5 of counsel under this section is discretionary, not mandatory”). However, in “exceptional 6 circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28 7 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th 8 Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether 9 exceptional circumstances exist, the Court must evaluate both “the likelihood of success on the 10 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 11 of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 12 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts 13 showing he has an insufficient grasp of his case or the legal issues involved and an inadequate 14 ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp. of America,

15 390 F.3d 1101, 1103 (9th Cir. 2004). 16 In Plaintiff’s Motions, he fails to provide any explanation as to why he needs Court- 17 appointed counsel. Dkt. 7, 9. The Court notes this case does not involve complex facts or law, 18 and Plaintiff has not shown an inability to articulate the factual basis of his claims in a fashion 19 understandable to the Court. Plaintiff has also not shown he is likely to succeed on the merits of 20 his case. In fact, at this time, the Court has found Plaintiff’s Complaint fails to state a claim upon 21 which relief can be granted. See Dkt. 8. Accordingly, Plaintiff’s requests for Court-appointed 22 counsel (Dkt. 7, 9) are denied without prejudice. 23

24 1 II. Motion for Extension (Dkt. 9) 2 On January 24, 2020, the Court declined to serve Plaintiff’s Complaint and directed 3 Plaintiff to file an amended complaint or show cause why this case should not be dismissed on or 4 before February 20, 2020 (“Order”). Dkt. 8. On February 3, 2020, Plaintiff filed the Motion for

5 Extension, requesting a 90-day extension in his case. Dkt. 9. The Court presumes Plaintiff is 6 requesting a 90-day extension to respond to the Order. Plaintiff does not explain why he needs 7 the extension. See id. 8 After review of Plaintiff’s Motion for Extension, the Motion for Extension (Dkt. 9) is 9 granted-in-part as follows: Plaintiff shall have up to and including April 17, 2020 to respond to 10 the Order. The Court notes that if Plaintiff fails to file a response to the Order by April 17, 2020, 11 the Court will recommend this case be dismissed without prejudice. 12 III. Conclusion 13 For the above stated reasons, Plaintiff’s Motion for Counsel (Dkt. 7) is denied and 14 Motion for Extension (Dkt. 9) is granted-in-part and denied-in-part. Plaintiff is denied Court-

15 appointed counsel but shall have until April 17, 2020 to file a response to the Order. 16 Dated this 16th day of March, 2020. 17 A 18 David W. Christel United States Magistrate Judge 19 20 21 22 23 24