Scott v. Cunningham

Filing 42

ORDER denying 11 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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RICHARD SCOTT,
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Plaintiff,

No. C11-5509 BHS/KLS

v.
ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

KELLY J. CUNNINGHAM,

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Defendant.
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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. 11. Having carefully reviewed

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Plaintiff’s motion, Defendant’s opposition (ECF Nos. 14-17), and balance of the record, the

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Court finds, for the reasons stated below, that 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
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circumstances exist, the court must evaluate both “the likelihood of success on the merits [and]
the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal
ORDER - 1

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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).

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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.

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Plaintiff states that he requires the appointment of counsel because this is a complex case,
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discovery is impossible due to his incarceration, and the issues raised will require a special

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master or investigator. ECF No. 11, p. 2. Plaintiff filed his complaint pro se and has

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demonstrated an adequate ability to articulate his claims pro se. Plaintiff has a long history of

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litigation in this district and is the subject of case management orders because of abusive

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litigation tactics. The Court is managing this case pursuant to those orders. ECF No. 4; and Scott

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v. Seling, C04-5147 RJB, ECF. Nos. 152 and 170 ¶ 9. In this case, Plaintiff raises claims relating

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to the conditions of his confinement at the SCC, which he alleges have deteriorated to the point

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of violating the constitution. ECF No. 2. He asserts that the causes of the “deterioration” are

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budget cuts and that the Department of Corrections (DOC) vacated the McNeil Island in April

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2011, which he speculates must mean staff to maintain the island’s infrastructure no longer exist.

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ORDER - 2

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Id. Specifically, Mr. Scott complains of the lack of medical care, emergency services and court

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access. Id. This case does not involve complex facts or law.

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

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Accordingly, Plaintiff's motion to appoint counsel (ECF No. 11) is DENIED. The Clerk
is directed to send copies of this Order to Plaintiff.

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DATED this

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21st day of September, 2011.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 3