Richardson v. Gilbert

• Court: District Court, W.D. Washington
• Decided: October 2, 2020
• Docket: 3:19-cv-05525
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JOHN A RICHARDSON, III, Case No. 3:19-cv-05525-BHS-TLF 7 Plaintiff, v. ORDER DENYING MOTION TO 8 APPOINT COUNSEL AND RE- MARGARET GILBERT, NOTING MOTION FOR SUMMARY 9 JUDGMENT Defendants. 10

11 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action 12 pursuant to 42 U.S.C. § 1983. Presently before the Court is defendants’ motion for 13 summary judgment and plaintiff’s motion to appoint counsel. Dkts. 25, 30. 14 The plaintiff has no constitutional right to appointed counsel in a § 1983 action. 15 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. 16 $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of 17 counsel under this section is discretionary, not mandatory.”). In “exceptional 18 circumstances,” the Court may appoint counsel for indigent civil litigants pursuant to 28 19 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled 20 on other grounds, 154 F.3d 952 (9th Cir. 1998). 21 The Court must evaluate both “the likelihood of success on the merits [and] the 22 ability of the petitioner to articulate his claims pro se in light of the complexity of the 23 legal issues involved”, to make an assessment whether exceptional circumstances 24 1 show that counsel should be appointed. Wilborn v. Escalderon, 789 F.2d 1328, 1331 2 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A 3 plaintiff must plead facts that show he has an insufficient grasp of his case or the legal 4 issue(s) involved, as well as an inadequate ability to articulate the factual basis of his

5 claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 6 Although a pro se litigant may be better served with the assistance of counsel, that is 7 not the test. Rand, 113 F.3d at 1525. 8 Plaintiff’s motion states only that he is requesting court appointed counsel but 9 fails to set forth any facts indicating a likelihood of success on the merits or that he is 10 unable to articulate his claims pro se in light of the complexity of the legal issues 11 involved. Dkt. 30. 12 Plaintiff states in his motions that he does not have the resources to pay for an 13 attorney. Dkt. 30. The inability to obtain counsel due to cost or lack of availability, 14 however, does not constitute an exceptional circumstance that necessarily requires the

15 appointment of counsel. 16 Plaintiff asserts his imprisonment as well his limited legal knowledge, and limited 17 access to the law library1, will greatly limit his ability to litigate. Dkt. 30. These are not 18 exceptional circumstances – they are an explanation of difficulties commonly 19 encountered by many pro se litigants. 20 21

22 1 The Court notes that plaintiff provides no detail regarding alleged limitations on his access to the law library. A prisoner’s law library access may be limited to some extent due to security concerns in the 23 prison environment. This conclusory assertion does not demonstrate exceptional circumstances warranting appointment of counsel. As noted below, however, the Court will allow plaintiff additional time 24 to respond to defendants’ motion for summary judgment. 1 Plaintiff asserts his case is complex but offers no explanation or support for this 2 claim. Plaintiff’s complaint raises claims related to alleged deliberate indifference by 3 defendants to his serious medical need in violation of the Eighth Amendment as well as 4 related state law negligence claims. These claims do not appear to involve particularly

5 complex issues of either fact or law. 6 Up to this point plaintiff has articulated his claims with sufficient clarity for the 7 Court to order service of the complaint. Plaintiff has not demonstrated an inability to 8 articulate his claims pro se nor has he shown that he is likely to succeed on the merits 9 of his claims. Plaintiff’s motion for appointment of counsel (Dkt. 30), therefore, is 10 DENIED without prejudice. 11 Because plaintiff asserts he has limited library access and in order to ensure 12 plaintiff has a sufficient opportunity to respond to defendants’ motion for summary 13 judgment, the Court will allow plaintiff additional time to file a response. Accordingly, 14 plaintiff is directed to file any response to defendants’ motion for summary judgment on

15 or before October 26, 2020. Defendants may file a reply on or before October 30, 16 2020. The Clerk is directed to re-note defendants’ motion for summary judgment (Dkt. 17 25) to October 30, 2020. 18 Dated this 2nd day of October, 2020. 19 20 A 21 Theresa L. Fricke United States Magistrate Judge 22 23 24