Rogers v. Washington Department of Corrections

Opinion

1 2 3 WESTERN DISTRICT OF WASHINGTON 6 DARYL ROGERS, Case No. 3:21-cv-05011-BJR-TLF 7 Plaintiff, v. ORDER DENYING PLAINTIFF’S 8 MOTION FOR APPOINTMENT OF WASHINGTON DEPARTMENT OF COUNSEL WITHOUT PREJUDICE 10 Defendants. 11 This matter comes before the Court on plaintiff’s motion to appoint counsel. Dkt. 12 109. For the reasons discussed below, plaintiff’s request is denied without prejudice. 13 A plaintiff has no constitutional right to appointed counsel in an action under 42 14 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also 15 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 16 (“[a]ppointment of counsel under this section is discretionary, not mandatory.”). In 17 “exceptional circumstances,” the Court may appoint counsel for indigent civil litigants 18 pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 19 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 20 The Court must evaluate both “the likelihood of success on the merits [and] the 21 ability of the petitioner to articulate his claims pro se in light of the complexity of the 22 legal issues involved”, to make an assessment whether exceptional circumstances 23 show that counsel should be appointed. Wilborn v. Escalderon, 789 F.2d 1328, 1331 24 1 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff 2 must plead facts that show he has an insufficient grasp of his case or the legal issue(s) 3 involved, as well as an inadequate ability to articulate the factual basis of his claim. 4 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

5 Although a pro se litigant may be better served with the assistance of counsel, that is 6 not the test. Rand, 113 F.3d at 1525. 7 Plaintiff argues that he is indigent, is visually impaired and confined to a 8 wheelchair, has limited access to the law library, is unable to conduct depositions or 9 procure an expert witness as a result of his incarceration, and that he has attempted, 10 without success, to retain counsel. Dkt. 109. Plaintiff has not identified conditions that 11 render this case extraordinary or set his circumstances apart from those of any other 12 incarcerated litigant. Furthermore, plaintiff has demonstrated that he has a sufficient 13 grasp of the legal issues involved in this case and has adequately articulated the basis 14 of his claim.

15 16 17 18 19 20 21 22 23

24 1 This case does not, at this time, present the extraordinary circumstances 2 required for the appointment of counsel. See Wilborn, 789 F.2d at 1331. The Court 3 therefore DENIES plaintiff’s motion for appointment of counsel without prejudice. 4

5 6 Dated this 13th day of November, 2023. 7 8 9 A

Theresa L. Fricke 10 United States Magistrate Judge

11 12 13 14 15 16 17 18 19 20 21 22 23 24