Watkins v. Baum et al

Filing 9

ORDER denying 8 Motion to Appoint Counsel. Signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JERMAINE DEVON WATKINS,
Plaintiff,

No. C11-5494 RBL/KLS

v.
ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

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CATHERINE M. BAUM, ARNP, and
ELIABETH G. SUITER, M.D.,

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Defendants.
This civil rights action has been referred to United States Magistrate Judge Karen L.

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Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Before the Court is
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Plaintiff’s motion for the appointment of counsel. ECF No. 4. Having carefully reviewed

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Plaintiff’s motion, and balance of the record, the Court finds, for the reasons stated below, that

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Plaintiff’s motion should be denied.

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DISCUSSION

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No constitutional right exists to appointed counsel in a § 1983 action. Storseth v.

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Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). See also United States v. $292,888.04 in U.S.

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Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is

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discretionary, not mandatory.”) However, in “exceptional circumstances,” a district court may

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appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28

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U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other

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grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis supplied.) To decide whether exceptional
ORDER - 1

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circumstances exist, the court must evaluate both “the likelihood of success on the merits [and]

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the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal

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issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he

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has an insufficient grasp of his case or the legal issue involved and an inadequate ability to
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articulate the factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d
1101, 1103 (9th Cir. 2004).
That a pro se litigant may be better served with the assistance of counsel is not the test.

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Rand, 113 F.3d at 1525. Moreover, the need for discovery does not necessarily qualify the issues

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involved as “complex.” Wilborn, 789 F.2d at 1331. Most actions require development of further

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facts during litigation. But, if all that was required to establish the complexity of the relevant

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issues was a demonstration of the need for development of further facts, then practically all cases
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would involve complex legal issues. Id.
Plaintiff states that he requires the appointment of counsel because he cannot afford

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counsel, his imprisonment will greatly limit his ability to litigate, the issues involved in his case

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are complex, he has limited access to the law library and limited knowledge of the law, and that

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counsel will be better able to present evidence and examine witnesses at trial. ECF No. 4, p. 1.

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Plaintiff filed his complaint pro se and has demonstrated an adequate ability to articulate

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his claims pro se. The pleadings on file demonstrate that Plaintiff is familiar with the Court

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rules as well as the law pertaining to his claims. Contrary to Plaintiff’s belief, this is not a

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complex case. Plaintiff claims that Defendants were deliberately indifferent to his medical

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needs. This case does not involve complex facts or law.

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ORDER - 2

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The court finds no exceptional circumstances in this case. While Plaintiff may not have

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vast resources or legal training, he meets the threshold for a pro se litigant. Concerns regarding

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investigation and discovery are also not exceptional factors, but are the type of difficulties

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encountered by many pro se litigants. There are also numerous avenues of discovery available to

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the parties through the Federal Rules of Civil Procedure during the litigation process.
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Moreover, Plaintiff has not shown a likelihood of success on the merits.
Accordingly, Plaintiff's motion to appoint counsel (ECF No. 4) is DENIED. The Clerk is
directed to send copies of this Order to Plaintiff.

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DATED this 7th day of July, 2011.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 3