Tabb v. NaphCare

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DANNY TABB, Case No. C21-5541 LK-TLF 7 Plaintiff, v. ORDER DENYING PLAINTIFF’S 8 MOTION FOR APPOINTMENT NAPHCARE, et al., OF COUNSEL 9 Defendants. 10

11 This matter comes before the Court on plaintiff’s motion for appointment of 12 counsel. Dkt. 11. Plaintiff is proceeding in forma pauperis. The Court has considered the 13 record and finds that plaintiff’s motion for counsel should be denied at this time, without 14 prejudice. Plaintiff will be allowed to renew this motion if, at a later time in the 15 proceedings, exceptional circumstances would require appointment of counsel. 16 No constitutional right exists to appointed counsel in a § 1983 action. Storseth v. 17 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 18 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this 19 section is discretionary, not mandatory.”). In “exceptional circumstances,” a district court 20 may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand 21 v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 22 952 (9th Cir. 1998). 23 The Court must evaluate both “the likelihood of success on the merits [and] the 24 ability of the petitioner to articulate his claims pro se in light of the complexity of the 1 legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991) (quotations 2 omitted). A plaintiff must plead facts that show he has an insufficient grasp of his case 3 or the legal issue involved, and an inadequate ability to articulate the factual basis of his 4 claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

5 Here, plaintiff filed his complaint pro se and has demonstrated an ability to 6 articulate his claims pro se in a clear fashion understandable to this Court. Plaintiff’s 7 allegations indicate that this is not a complex case involving complex facts or law. In 8 addition, plaintiff presents no evidence to show that he is likely to succeed on the merits 9 of his case. While plaintiff may not have vast resources or legal training, he meets the 10 threshold for a pro se litigant. 11 Thus, plaintiff has failed in his burden to demonstrate an inability to present his 12 claims to this Court without counsel, or to show that exceptional circumstances require 13 the Court to appoint counsel at this stage. See generally, Mallard v. U.S. Dist. Court for 14 Southern dist. of Iowa, 490 U.S. 296, 310 (1989) (28 U.S.C. § 1915 does not allow a

15 federal court to coercively appoint counsel); James v. Eli, 889 F.3d 320, 330-331 (7th 16 Cir. 2018) (en banc) (district courts may ask, but not compel, a lawyer to represent an 17 indigent litigant). 18 The Court DENIES the motion (Dkt. 11) without prejudice. Plaintiff will be allowed 19 to renew this motion if, later in the proceedings, exceptional circumstances would 20 require appointment of counsel. 21 22 23

24 1 The Clerk shall send a copy of this Order to plaintiff. 2 Dated this 15th day of March, 2022. 3 4 A 5 Theresa L. Fricke 6 United States Magistrate Judge

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