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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 LEE PATRICK JOHNSON, CASE NO. C17-0389JLR ORDER DENYING MOTION TO APPOINT COUNSEL Plaintiff, 11 v. 12 13 MICHAEL ALLEN, et al., Defendants. 14 15 I. INTRODUCTION 16 Before the court is Plaintiff Lee Patrick Johnson’s motion to appoint counsel. 17 (Mot. (Dkt. # 18).) Mr. Johnson is proceeding pro se and in forma pauperis (“IFP”). 18 (See Am. Compl. (Dkt. # 15); IFP Order (Dkt. # 3).) The court has considered Mr. 19 Johnson’s motion, the relevant portions of the record, and the applicable law. Being fully 20 advised,1 the court DENIES Mr. Johnson’s motion for the reasons set forth below. 21 1 22 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). ORDER - 1 1 2 II. BACKGROUND & ANALYSIS Mr. Johnson filed this suit on March 10, 2017. (See IFP Mot. (Dkt. # 1).) Mr. 3 Johnson brings constitutional claims under 42 U.S.C. § 1983 against Defendants Sergeant 4 Michael Allen, Sergeant Schneider, Major Hyatt, Captain Cline, Director W. Higgs, 5 Deputy Prosecuting Attorney Joseph Marchesano, and King County (collectively, 6 “Defendants”) for allegedly mishandling Mr. Johnson’s mail.2 (See generally Am. 7 Compl. at 3-12.) Mr. Johnson requests court-appointed counsel pursuant to 28 U.S.C. 8 § 1915(e)(1) because (1) he is “unable to afford counsel,” (2) “[t]he issues involved in 9 this case are complex [and] will require significant research and investigation,” (3) his 10 “case is against defendants that almost certainly have a higher education” than Mr. 11 Johnson and “an attorney would be better at articulating [his] claims in light of the 12 complexity of the legal issues,” (4) he “cannot afford to purchase legal reference 13 material,” and (5) “counsel would better enable [Mr. Johnson] to present evidence and 14 cross examine witnesses” at trial. (Mot. at 1-2.) The court now addresses Mr. Johnson’s 15 motion. 16 A district court has “discretion to designate counsel to represent an indigent civil 17 litigant.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); see also 28 U.S.C. 18 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 19 counsel.”). The court may only do so, however, in “exceptional circumstances.” 20 Wilborn, 789 F.2d at 1331; see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 21 2 22 Specifically, Mr. Johnson alleges violations of the First, Fourth, Fifth, and Fourteenth Amendments. (See Am. Compl. at 3-8.) ORDER - 2 1 (9th Cir. 2004). The court may find exceptional circumstances after evaluating “the 2 likelihood of success on the merits” and “the ability of the petitioner to articulate his 3 claims pro se in light of the complexity of the legal issues involved.” Wilborn, 789 F.2d 4 at 1331. The court must analyze both of these factors before deciding whether to appoint 5 counsel under Section 1915(e)(1). See id. The plaintiff seeking counsel bears the burden 6 of demonstrating exceptional circumstances. Brogdon v. City of Phoenix Police Dep’t, 7 No. CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D. Ariz. June 19, 2013). 8 9 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 10 is likely to succeed on the merits. Because Mr. Johnson provides no evidence of his 11 likelihood of success at trial, he fails to satisfy the first factor of the test. Torbert v. Gore, 12 No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). 13 Even if Mr. Johnson were likely to succeed on the merits of his claims, however, 14 Mr. Johnson fails to demonstrate that any difficulty he will experience in attempting to 15 litigate his case stems “from the complexity of the issues involved.” Wilborn, 789 F.2d at 16 1331; (see Mot. at 1 (stating only that “[t]he issues involved in this case are complex” 17 and that “an attorney would be better at articulating my claims in light of the complexity 18 of the legal issues”).) Indeed, the constitutional claims that Mr. Johnson alleges appear to 19 be relatively straightforward. (See Am. Compl. at 3-8 (alleging violations of the First, 20 Fourth, Fifth, and Fourteenth Amendments).) That Mr. Johnson might find “it difficult to 21 articulate his claims pro se” is insufficient to demonstrate that his case involves complex 22 legal issues. Wilborn, 789 F.2d at 1331; see also Garcia v. C.D.C.R., No. 12cv1084 ORDER - 3 1 IEG (KSC), 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013) (noting that exceptional 2 circumstances are not shown even where there is “no doubt [that] most pro se litigants 3 find it difficult to articulate their claims and would be better served with the assistance of 4 counsel”). Accordingly, Mr. Johnson fails to meet his burden of establishing exceptional 5 circumstances that warrant the appointment of counsel.3 See Wilborn, 789 F.2d at 1331; 6 Brogdon, 2013 WL 3155116, at *1. 7 8 9 10 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. 11 12 A 13 JAMES L. ROBART United States District Judge 14 15 16 17 18 19 20 3 21 22 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.,; E-Pro Se, W. DIST. OF WASH., ORDER - 4

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