Herbert v. Lovell et al

Filing 31

ORDER denying plaintiff's 27 Motion to Compel; and denying plaintiff's 30 Motion to Appoint Counsel. A copy of this Order has been mailed to plaintiff today. Signed by Hon. Mary Alice Theiler.(GB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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09 ANTHONY G. HERBERT,
Case No. C13-0044-TSZ-MAT
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Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTIONS TO COMPEL AND TO
APPOINT COUNSEL

v.

12 WALTER LOVELL, et al.,
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Defendants.

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This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before

16 the Court at the present time on plaintiff’s motions to compel and to appoint counsel. The
17 Court, having reviewed plaintiff’s motions, and the balance of the record, does hereby find and
18 ORDER as follows:
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(1)

Plaintiff’s motion to compel (Dkt. No. 27) is DENIED. Plaintiff’s motion is

20 somewhat confusing. However, it appears that defendants’ answer to the complaint raised
21 concerns for plaintiff about whether the named defendants are currently employed by King
22 County Public Health (KCPH) and whether they have been advised by counsel that they are

ORDER RE: PLAINTIFF’S PENDING
MOTIONS - 1

01 being sued. Plaintiff asks that defendants’ counsel be compelled to identify who is and is not
02 currently employed by KCPH and to disclose who she has and has not notified that they are
03 being sued. He also asks that he be provided discovery in the form of employment records for
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To the extent plaintiff is entitled to such information, he must obtain it through

06 appropriate discovery requests directed to defendants in accordance with the Federal Rules of
07 Civil Procedure and not by way of a motion to the Court. 1 Plaintiff makes no viable request for
08 relief in his motion to compel and, thus, the Court will not consider the motion further.
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(2)

Plaintiff’s second motion to appoint counsel (Dkt. No. 30) is DENIED. As

10 plaintiff was previously advised, there is no right to have counsel appointed in cases brought
11 under 42 U.S.C. § 1983. Although the Court, under 28 U.S.C. § 1915(e)(1), can request
12 counsel to represent a party proceeding in forma pauperis, the Court may do so only in
13 exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);
14 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th
15 Cir. 1980).

A finding of exceptional circumstances requires an evaluation of both the

16 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se
17 in light of the complexity of the legal issues involved. Wilborn, 789 F.2d at 1331. Plaintiff
18 has not demonstrated that this case involves exceptional circumstances which warrant
19 appointment of counsel at the present time.
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To the extent plaintiff seeks to invoke the provisions of Federal Rule of Civil Procedure 26 which

22 require initial disclosures of information to the opposing party, plaintiff is advised that such provisions do not
apply in a case such as this one which was filed by a pro se litigant who is in state custody. See Fed. R. Civ. P.
(a)(1)(B)(iv).

ORDER RE: PLAINTIFF’S PENDING
MOTIONS - 2

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(3)

The Clerk is directed to send a copy of this Order to plaintiff and to counsel for

02 defendants, and to the Honorable Thomas S. Zilly.
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DATED this 16th day of August, 2013.

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A

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Mary Alice Theiler
Chief United States Magistrate Judge

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ORDER RE: PLAINTIFF’S PENDING
MOTIONS - 3