Alverto v. Department of Corrections et al

Filing 74

ORDER denying 64 Second 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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JEROME CEASAR ALVERTO,
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DEPARTMENT OF CORRECTIONS, C/O
FINCH, C/O PERCIFIELD, C/O
GRIJALVA, SGT. C. ROOP, HERBERT C.
PENROSE, MICHAEL ESTES, KRISTI
ENTROP, DR. JUGUILON, STEPHEN
SINCLAIR, RAYMOND BUCHMANN, C/O
ADAMIRE, RON FRAKER, ROB
JACKSON, COUNSELOR WALKER,
KURT GRUBB, C/O DELEON, C/O
PALMER, JASON ROMERO, ADELE
WILLIAMS, BRYAN MCGARVIE,
DARREN HEAWARD, DENISE LARSON,
LT. TOM TABER, JASON ULRICH, and
STATE OF WASHINGTON,

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ORDER DENYING PLAINTIFF’S
SECOND MOTION TO APPOINT
COUNSEL

Defendants.

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No. C11-5572 RJB/KLS

Plaintiff,
v.

This civil rights action has been referred to United States Magistrate Judge Karen L.
Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Before the Court is
Plaintiff’s second motion for the appointment of counsel. ECF No. 64. Having carefully

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reviewed Plaintiff’s motion, Defendants’ opposition (ECF No. 68), and balance of the record, the
Court finds, for the reasons stated below, that Plaintiff’s motion should be denied.

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DISCUSSION

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As Plaintiff has previously been advised, no constitutional right exists to appointed

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counsel in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). See also
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United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment

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of counsel under this section is discretionary, not mandatory.”) However, in “exceptional

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circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28

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U.S.C. § 1915(e)(1) (formerly 28 U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis supplied.) To
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decide whether exceptional circumstances exist, the court must evaluate both “the likelihood of

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success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of

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the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must

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plead facts that show he has an insufficient grasp of his case or the legal issue involved and an

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inadequate ability to 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 he is incarcerated,

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indigent, has limited access to law materials, the case will require litigation, and he is not an

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attorney. ECF No. 64. Plaintiff filed his complaint pro se and has clearly demonstrated an

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ability to articulate his claims pro se in a clear fashion understandable to this Court. The

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pleadings on file demonstrate that Plaintiff is familiar with the court rules as well as the law
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pertaining to his claims. Plaintiff has also filed various motions and has conducted discovery.

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This is also not a complex case. Plaintiff claims that he was physically and sexually assaulted

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and retaliated against. This case does not involve complex facts or law.

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Finally, Plaintiff present no evidence to show that he is likely to succeed on the merits of

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his case. While Plaintiff may not have vast resources or legal training, he meets the threshold for
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a pro se litigant. Concerns regarding investigation, access to legal resources or examination of

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witnesses are not exceptional factors, but are the type of difficulties encountered by many pro se

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litigants. Plaintiff has failed in his burden to demonstrate an inability to present his claims to this

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Court without counsel.
Accordingly, Plaintiff's second motion to appoint counsel (ECF No. 64) is DENIED. The
Clerk is directed to send copies of this Order to Plaintiff.

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DATED this 27th day of January, 2012.

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A

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Karen L. Strombom
United States Magistrate Judge

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