Poulson v. Kirkegard

Filing 58

ORDER denying 54 Motion to Clarify; denying 55 Motion to Modify; denying 56 Motion to Appoint Counsel. Signed by Magistrate Judge John Johnston on 2/22/2016. Mailed to Poulson. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
KERMIT POULSON,

CV 14-00043-H-DLC-JTJ

Plaintiff,
vs.

ORDER

DERICK BUDD, BEAU BALTEZAR,
GARRETT KENT, SAM SHORT,
JOSH SWEENEY, AND JASON
TRUDEAU,
Defendants.
Plaintiff Kermit Poulson has filed a motion to clarify statement, motion for
court order to modify conditions of confinement for access to courts, and motion
for the appointment of counsel. (Docs. 54-56.) The motions do not comply with
Local Rule 7.1 because Mr. Poulson does not state in the text of the motions
whether he contacted the other parties or whether any party objects to the motions.
L.R. 7.1(c)(1). Thus, the motions will be denied.
To the extent Mr. Poulson’s motion to clarify statement (Doc. 54) seeks to
amend his pleadings, it is untimely. The deadline for filing amendments to
pleadings was June 19, 2015. (Scheduling Order, Doc. 29.)
Mr. Poulson seeks an order to compel the librarian at Montana State Prison

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to provide him free legal copies, pens, paper and stamped envelopes. (Doc. 55.)
The librarian at the prison is not a party to this action. A district court has no
authority to grant relief where it has no jurisdiction over the parties. Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an
essential element of the jurisdiction of a district . . . court, without which the court
is powerless to proceed to an adjudication.”) (alteration in original) (citation and
internal quotation omitted).
Lastly, the Court will not request counsel represent Mr. Poulson at this late
stage in the litigation. (Doc. 56.) No one, including incarcerated prisoners, has a
constitutional right to be represented by appointed counsel when they choose to
bring a civil lawsuit under 42 U.S.C. § 1983. Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997), withdrawn on other grounds, 154 F.3d 952, 962 (9th Cir.
1998). Unlike in criminal cases, the statute that applies in civil cases does not give
a court the power to simply appoint an attorney. 28 U.S.C. § 1915 only allows the
Court to “request” counsel to represent a litigant who is proceeding in forma
pauperis. 28 U.S.C. § 1915(e)(1). A judge cannot order a lawyer to represent a
plaintiff in a § 1983 lawsuit–a judge can merely request a lawyer to do so. Mallard
v. United States Dist. Court, 490 U.S. 296, 310 (1989). Further, much different
from a criminal case, a judge may only request counsel for an indigent plaintiff
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under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both
‘the likelihood of success on the merits and the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal
issues involved.’ Neither of these factors is dispositive and both must
be viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir. 1986) (citations omitted).
Many indigent plaintiffs might fare better if represented by counsel,
particularly in more complex areas such as discovery and the securing of expert
testimony. However, this is not the test. Rand, 113 F.3d at 1525. Plaintiffs
representing themselves, or “pro se litigants,” are rarely able to research and
investigate facts easily. This alone does not deem a case complex. See Wilborn,
789 F.2d at 1331. Factual disputes and thus anticipated examination of witnesses
at trial does not establish exceptional circumstances supporting an appointment of
counsel. Rand, 113 F.3d at 1525.
Mr. Poulson has not made a sufficient showing of exceptional
circumstances. He has not demonstrated a likelihood of success on the merits or
his inability to articulate his claims pro se. As discovery has ended in this case and
motions are due in less than a month, the Court will not request counsel to
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represent Mr. Poulson at this late stage in the litigation.
Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. Poulson’s Motion to Clarify Statement (Doc. 54) is DENIED.
2. Mr. Poulson’s Motion for Court Order to Modify Conditions of
Confinement for Access to Courts (Doc. 55) is DENIED.
3. Mr. Poulson’s Motion for Appointment of Counsel (Doc. 56) is
DENIED.
DATED this 22nd day of February, 2016.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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