Nocita v. Krohn

• Court: District Court, W.D. Washington
• Decided: March 13, 2023
• Docket: 3:22-cv-05741
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 JACOB NOCITA and NINA NOCITA, CASE NO. C22-5741 BHS 8 Plaintiffs, ORDER 9 v. 10 ANDREA LEAL, et al., 11 Defendants. 12

13 This matter comes before the Court on Plaintiffs Jacob Nocita and Nina Nocita’s 14 Application for Court-Appointed Counsel, Dkt. 42. 15 Nocita1 requests the Court appoint him counsel because he has been unable to 16 secure counsel himself, asserting that the attorneys he contacted told him “they didn’t 17 have time to take on [his] case as i[t] was to[o] complex.” Id. Defendants David 18 Blundered, Brian Dayton, Shane Krohn, and Christian Slater respond that the Court 19 should not appoint counsel because Nocita has failed to demonstrate exceptional 20 circumstances by failing to show either a likelihood of success on the merits or that he is 21 1 For ease of reference, the Court refers to Jacob and Nina Nocita in the singular as 22 “Nocita.” 1 unable to articulate his claims pro se. Dkt. 43. Defendants Sandra Common, Carolyn 2 Gatlin, Andrea Leal, Rachel Mattox, Ella Sistrunk-Hollender, and Melissa Whitmire2

3 respond that they “do not concede that [Nocita’s] motion to appoint counsel has merit, 4 but otherwise take no position on the motion.” Dkt. 45. 5 No constitutional right to counsel exists for an indigent plaintiff in a civil case 6 unless the plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. 7 Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. 8 § 1915(e)(1), the Court has the discretion to appoint counsel for indigent litigants who are

9 proceeding in forma pauperis. United States v. $292,888.04 in U.S. Currency, 54 F.3d 10 564, 569 (9th Cir. 1995). 11 The Court will appoint counsel under only “exceptional circumstances.” Id.; 12 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional 13 circumstances requires an evaluation of both the likelihood of success on the merits and

14 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 15 legal issues involved.” Id. (internal quotations omitted). These factors must be viewed 16 together before reaching a decision on whether to appoint counsel under § 1915(e)(1). Id. 17 Nocita has not articulated whether exceptional circumstances exist in this case. He 18 has not demonstrated a likelihood of success on the merits or an inability to articulate his

19 claims pro se. 20 21 2 These Defendants also purport to move on behalf of Paige Snodgrass who is not named 22 in Nocita’s operative complaint, Dkt. 29. 1 Therefore, it is hereby ORDERED that Plaintiffs Jacob Nocita and Nina Nocita’s 2 Application for Court-Appointed Counsel, Dkt. 42, is DENIED.

3 Dated this 13th day of March, 2023. A 4 5 BENJAMIN H. SETTLE 6 United States District Judge

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