Maier v. Jail Health Staff et al

Filing 19

ORDER denying plaintiff's 16 Motion to Appoint Counsel; RENOTING defendants' 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Noting Date 8/10/2018, signed by Hon. James P. Donohue. **3 PAGE(S), PRINT ALL**(David Maier, Prisoner ID: 338250)(SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DAVID CHARLES MAIER,
Plaintiff,

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v.
DEPUTY MATT CHARROIN, et al.,
Defendants.

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Case No. C18-390-JLR-JPD
ORDER DENYING PLAINTIFF’S
APPLICATION FOR COURT
APPOINTED COUNSEL AND RENOTING DEFENDANTS’ MOTION TO
DISMISS

This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before
the Court at the present time on plaintiff’s application for court appointed counsel. The Court,
having reviewed plaintiff’s application, and the balance of the record, hereby finds and ORDERS
as follows:
(1)

Plaintiff’s application for court appointed counsel (Dkt. 16) is DENIED. There is

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

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ORDER DENYING PLAINTIFF’S APPLICATION
FOR COURT APPOINTED COUNSEL - 1

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Wilborn, 789 F.2d at 1331.

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Plaintiff offers little explanation in his application as to why he believes appointment of

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counsel is appropriate in this matter, noting only that he has contacted several attorneys to help

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him in this case, apparently without success. (See Dkt. 16 at 2.) There is simply nothing in

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plaintiff’s application for counsel, or in his complaint, which demonstrates that this case involves

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exceptional circumstances warranting the appointment of counsel. In a more recent submission,

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which plaintiff identifies as a declaration, plaintiff reiterates his request for counsel and suggests

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that he is being denied access to evidence which would allow him to counter defendants’

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assertion, made in their pending motion to dismiss, that plaintiff did not exhaust his

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administrative remedies. (See Dkt. 17.)

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To the extent plaintiff intends to argue that counsel is necessary to assist him in

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countering defendants’ exhaustion argument, he has still not established that appointment of

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counsel is warranted. Plaintiff has not shown that the task of obtaining evidence to demonstrate

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proper exhaustion, assuming it exists, is beyond his capabilities, or that such evidence is being

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withheld. In fact, the record shows that plaintiff made a public records request seeking

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documents from the Whatcom County Jail, and that Jail Chief Wendy Jones responded to that

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request, advising plaintiff that documents in his file were available to him, albeit for a small fee.

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ORDER DENYING PLAINTIFF’S APPLICATION
FOR COURT APPOINTED COUNSEL - 2

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(See Dkt. 17 at 4.) The mere fact that plaintiff may be required to pay a fee in order to obtain

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necessary documentation is not sufficient to establish an entitlement to counsel.1

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(2)

Defendants have filed a motion to dismiss which was noted on the Court’s

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calendar for consideration on June 15, 2018. In light of the Court’s ruling on plaintiff’s motion

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for appointment of counsel, the Court deems it appropriate to grant plaintiff some additional time

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to file his response to defendants’ motion to dismiss. Accordingly, plaintiff is directed to file and

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serve any response to defendants’ motion to dismiss not later than August 6, 2018. Defendants’

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motion to dismiss (Dkt. 13) is RE-NOTED on the Court’s calendar for consideration on August

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10, 2018.

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(3)

The Clerk is directed to send copies of this Order to plaintiff, to counsel for

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defendants, and to the Honorable James L. Robart.

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DATED this 9th day of July, 2018.

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A
JAMES P. DONOHUE
United States Magistrate Judge

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It is noteworthy that plaintiff acknowledged in his complaint that he failed to complete the grievance
process. (See Dkt. 7 at 2.) If he has now changed his position on that issue, it is incumbent upon him to support his
new position with actual evidence.

ORDER DENYING PLAINTIFF’S APPLICATION
FOR COURT APPOINTED COUNSEL - 3