Kelly v. Washington State Department of Transportation et al

Filing 13

ORDER denying without prejudice Plaintiff's 12 Motion to Appoint Counsel. This Order does not preclude Plaintiff from re-filing this Motion once a factual record pertaining to his claims has been more fully developed. Signed by Judge Ricardo S Martinez. (PM) cc: plaintiff via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MELVIN J. KELLY,
Plaintiff,

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v.
WASHINGTON STATE DEPARTMENT
OF TRANSPORTATION, et al.,

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Defendants.

)
) CASE NO. C16-522 RSM
)
)
) ORDER DENYING MOTION TO
) APPOINT COUNSEL
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)
)
)

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This matter comes before the Court on Plaintiff’s Motion to Appoint Counsel. Dkt. #12.

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Plaintiff asks the Court to appoint counsel in this employment-related case on the basis that he

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has contacted more than 20 attorneys and they have declined to take his case. Id. Plaintiff has

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been granted leave to proceed in forma pauperis in this matter. Dkt. #2. The Complaint was

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filed on April 12, 2016, Defendants have been served and have appeared, and trial is currently
scheduled for December 3, 2018. Dkt. #11.

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In civil cases, the appointment of counsel to a pro se litigant “is a privilege and not a

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right.” United States ex. Rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citation

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omitted). “Appointment of counsel should be allowed only in exceptional cases.” Id. (citing

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Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963)). A court must consider together “both the

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likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se

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in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954
ORDER
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(9th Cir. 1983). Even where the claim is not frivolous, counsel is often unwarranted where the

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litigant’s chances of success are extremely slim. See Mars v. Hanberry, 752 F.2d 254, 256 (6th

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Cir. 1985).

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At this early stage of the litigation, the Court cannot find that Plaintiff is entitled to

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appointment of counsel. It does not yet appear that any exceptional circumstances exist, and
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there is no record before the Court that would allow the Court to examine whether Plaintiff's

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claims appear to have merit. In addition, Title VII does not provide an automatic right to counsel

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for employment discrimination claims. See 42 U.S.C. § 2000e-5(f)(1).

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Accordingly, the Court hereby finds and ORDERS that Plaintiff’s Motion to Appoint

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Counsel (Dkt. #12) is DENIED without prejudice. This Order does not preclude Plaintiff from
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re-filing this Motion once a factual record pertaining to his claims has been more fully developed.
DATED this 2nd day of February, 2018.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER
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