Miller v. Thurston County

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 TIMOTHY ROSS MILLER, Case No. 3:23-cv-05745-TMC 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 FOURTH MOTION TO APPOINT v. COUNSEL 10 THURSTON COUNTY; NICOLAS 11 ANDERSEN; JOEL NAULT, 12 Defendant. 13

14 Before the Court is pro se Plaintiff Timothy Ross Miller’s fourth motion to appoint 15 counsel. Dkt. 31. For the reasons explained below, the Court DENIES Mr. Miller’s motion. 16 I. BACKGROUND 17 Mr. Miller filed this case on August 20, 2023, Dkt. 1, and three previous applications for 18 court-appointed counsel on October 13, 2023 (Dkt. 15), April 11, 2024 (Dkt. 23), and May 19, 19 2024 (Dkt. 27). His complaint asserts claims under 42 U.S.C. § 1983 alleging Defendants 20 wrongfully arrested him when responding to his 911 call for a domestic violence incident, 21 resulting in violations of his First, Second, Fourth, and Fourteenth Amendment rights. Dkt. 1, 3. 22 Mr. Miller requests court-appointed counsel in the instant motion for the same reasons 23 previously stated, compare Dkt. 31 with Dkt. 15, 23, 27. He restates that he has unsuccessfully 24 1 sought legal representation since early 2022. Dkt. 31 at 2. He has appended an exhibit to this 2 application that summarizes his factual allegations as an explanation of the complexity of his 3 case (compare Dkt. 31-1 with Dkt. 27-1–9). The Court has reviewed his submission.

4 II. DISCUSSION There is no constitutional right to appointed counsel in an action under 42 U.S.C. § 1983. 5 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 6 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section 7 is discretionary, not mandatory.”). In “exceptional circumstances,” the Court may appoint 8 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 9 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 10 The Court must evaluate (1) “the likelihood of success on the merits” and (2) “the ability 11 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 12 involved” when assessing whether there are exceptional circumstances warranting appointment 13 of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygdant v. 14 Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither factor is dispositive and “must be viewed 15 together before reaching a decision on request of counsel.” Id. 16 Exceptional circumstances may exist where the litigant has an insufficient grasp of the 17 legal issues involved or is unable to state the factual bases of their claims. See Agyeman v. Corr. 18 Corp. of Am., 390 F.3d 1101, 1103–04 (9th Cir. 2004) (appointing counsel where case was 19 unusually complex due to case law and litigant’s circumstances), cert. denied 545 U.S. 1128. 20 While any litigant “certainly would be better served with the assistance of counsel,” a litigant 21 requesting counsel must show more than that benefit. They must demonstrate that they are 22 unable to articulate their position due to the complexity of claims. See Rand, 113 F.3d at 1525. 23 The Court’s resources for appointing counsel are limited and must be reserved for those 24 1 cases meeting the standard discussed above. The Court notes that Mr. Miller’s continued 2 application for counsel has provided additional information but his core claims remain the same. 3 His case does not meet the standard for appointment of counsel for the following reasons:

4 First, Mr. Miller’s fourth motion provides the Court with similar information as his 5 previous motions with which evaluate the likelihood of success of his case on the merits. The 6 information provided does not present extraordinarily complex facts or legal issues. See Dkt. 27- 7 1, 27-3–9. Mr. Miller’s complaint alleges Defendants violated his First, Second, Fourth, and 8 Fourteenth Amendment rights by wrongfully arresting him when responding to his 911 call for a 9 domestic violence incident. Dkt. 1. The additional restatement of facts and claims provided in 10 this motion (see Dkt. 31-1) reaffirm that he is able to articulate the legal merits of his case and 11 point to supporting evidence without the assistance of court-appointed legal counsel. 12 Second, Mr. Miller’s renewed motion does not identify any change in circumstances or

13 facts that would render his case “exceptional” or of such complexity that warrants appointment 14 of counsel. Mr. Miller has continued to demonstrate his ability to file pleadings and motions in 15 this case: including, most recently, discovery requests that the Court is reviewing (see Dkt. 32). 16 Mr. Miller has not shown an inability to represent himself. See Agyeman, 390 F.3d at 1103–04. 17 While Mr. Miller may benefit from the assistance of legal counsel as a pro se litigant, he 18 certainly has no right to court-appointed counsel. See Storseth, 654 F.2d at 1353. The case does 19 not meet the requirements for complexity, nor has Mr. Miller shown an inability to represent 20 himself, such that appointed counsel is required. See Rand, 113 F.3d at 1525. 21 III. CONCLUSION The Court has reevaluated Mr. Miller’s claims and circumstances. This case lacks the 22 circumstances warranting appointment of counsel. 23 The Court DENIES Mr. Miller’s fourth motion to appoint counsel. Dkt. 31. 24 1 The Court encourages Mr. Miller to review this District’s resources for pro se litigants 2 available at https://www.wawd.uscourts.gov/representing-yourself-pro-se; and to consult with 3 the Federal Bar Association’s neighborhood legal clinics, with more information available at

4 https://www.kcba.org/?pg=Neighborhood-Legal-Clinics. 5 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 6 to any party appearing pro se at said party’s last known address. 7 Dated this 25th day of July, 2024. 8 A 9 Tiffany M. Cartwright 10 United States District Judge 11

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