Johnson v. Allen et al

Filing 19

ORDER denying 18 Motion to Appoint Counsel by Judge James L. Robart. (cc: plaintiff)(ST)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LEE PATRICK JOHNSON,

CASE NO. C17-0389JLR
ORDER DENYING MOTION TO
APPOINT COUNSEL

Plaintiff,

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v.
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MICHAEL ALLEN, et al.,
Defendants.

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I.

INTRODUCTION

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Before the court is Plaintiff Lee Patrick Johnson’s motion to appoint counsel.

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(Mot. (Dkt. # 18).) Mr. Johnson is proceeding pro se and in forma pauperis (“IFP”).

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(See Am. Compl. (Dkt. # 15); IFP Order (Dkt. # 3).) The court has considered Mr.

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Johnson’s motion, the relevant portions of the record, and the applicable law. Being fully

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advised,1 the court DENIES Mr. Johnson’s motion for the reasons set forth below.

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Mr. Johnson did not request oral argument, and the court determines that oral argument
would not be helpful to its disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4).

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II.

BACKGROUND & ANALYSIS

Mr. Johnson filed this suit on March 10, 2017. (See IFP Mot. (Dkt. # 1).) Mr.

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Johnson brings constitutional claims under 42 U.S.C. § 1983 against Defendants Sergeant

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Michael Allen, Sergeant Schneider, Major Hyatt, Captain Cline, Director W. Higgs,

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Deputy Prosecuting Attorney Joseph Marchesano, and King County (collectively,

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“Defendants”) for allegedly mishandling Mr. Johnson’s mail.2 (See generally Am.

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Compl. at 3-12.) Mr. Johnson requests court-appointed counsel pursuant to 28 U.S.C.

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§ 1915(e)(1) because (1) he is “unable to afford counsel,” (2) “[t]he issues involved in

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this case are complex [and] will require significant research and investigation,” (3) his

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“case is against defendants that almost certainly have a higher education” than Mr.

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Johnson and “an attorney would be better at articulating [his] claims in light of the

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complexity of the legal issues,” (4) he “cannot afford to purchase legal reference

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material,” and (5) “counsel would better enable [Mr. Johnson] to present evidence and

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cross examine witnesses” at trial. (Mot. at 1-2.) The court now addresses Mr. Johnson’s

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motion.

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A district court has “discretion to designate counsel to represent an indigent civil

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litigant.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); see also 28 U.S.C.

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§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

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counsel.”). The court may only do so, however, in “exceptional circumstances.”

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Wilborn, 789 F.2d at 1331; see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

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Specifically, Mr. Johnson alleges violations of the First, Fourth, Fifth, and Fourteenth
Amendments. (See Am. Compl. at 3-8.)

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(9th Cir. 2004). The court may find exceptional circumstances after evaluating “the

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likelihood of success on the merits” and “the ability of the petitioner to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Wilborn, 789 F.2d

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at 1331. The court must analyze both of these factors before deciding whether to appoint

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counsel under Section 1915(e)(1). See id. The plaintiff seeking counsel bears the burden

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of demonstrating exceptional circumstances. Brogdon v. City of Phoenix Police Dep’t,

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No. CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D. Ariz. June 19, 2013).

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Mr. Johnson makes no argument as to the likelihood of success on the merits of
his claims (see generally Mot.), and the court therefore cannot conclude that Mr. Johnson

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is likely to succeed on the merits. Because Mr. Johnson provides no evidence of his

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likelihood of success at trial, he fails to satisfy the first factor of the test. Torbert v. Gore,

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No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016).

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Even if Mr. Johnson were likely to succeed on the merits of his claims, however,

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Mr. Johnson fails to demonstrate that any difficulty he will experience in attempting to

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litigate his case stems “from the complexity of the issues involved.” Wilborn, 789 F.2d at

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1331; (see Mot. at 1 (stating only that “[t]he issues involved in this case are complex”

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and that “an attorney would be better at articulating my claims in light of the complexity

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of the legal issues”).) Indeed, the constitutional claims that Mr. Johnson alleges appear to

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be relatively straightforward. (See Am. Compl. at 3-8 (alleging violations of the First,

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Fourth, Fifth, and Fourteenth Amendments).) That Mr. Johnson might find “it difficult to

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articulate his claims pro se” is insufficient to demonstrate that his case involves complex

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legal issues. Wilborn, 789 F.2d at 1331; see also Garcia v. C.D.C.R., No. 12cv1084

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IEG (KSC), 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013) (noting that exceptional

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circumstances are not shown even where there is “no doubt [that] most pro se litigants

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find it difficult to articulate their claims and would be better served with the assistance of

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counsel”). Accordingly, Mr. Johnson fails to meet his burden of establishing exceptional

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circumstances that warrant the appointment of counsel.3 See Wilborn, 789 F.2d at 1331;

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Brogdon, 2013 WL 3155116, at *1.

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III.

CONCLUSION

For the foregoing reasons, the court DENIES Mr. Johnson’s motion to appoint
counsel (Dkt. # 18).
Dated this 16th day of May, 2017.

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A

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JAMES L. ROBART
United States District Judge

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Mr. Johnson may access materials to assist pro se litigants on the Western District of
Washington’s website. See Representing Yourself (“Pro Se”), W. DIST. OF WASH.,
http://www.wawd.uscourts.gov/representing-yourself-pro-se; E-Pro Se, W. DIST. OF WASH.,
http://www.wawd.uscourts.gov/pro-se/e-pro-se.

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