Merten v. Gilbert et al

Filing 19

ORDER denying 14 Motion to Appoint Counsel signed by Magistrate Judge Karen L Strombom.(MET) cc: plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICHARD DEAN MERTEN,

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Plaintiff,

No. C11-5641 RBL/KLS

v.
WELDON MARK GILBERT, PIERCE
COUNTY JAIL, and OFFICER
GARDNER,

ORDER DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL

Defendants.

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Before the Court is Plaintiff’s motion for the appointment of counsel. ECF No. 14.
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Having carefully reviewed Plaintiff’s motion 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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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.
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]
ORDER DENYING MOTION FOR COUNSEL - 1

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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
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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.
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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. Plaintiff claims that he was sexually assaulted by another inmate and that

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Defendant failed to protect him from the assault. ECF No. 6. Plaintiff is requesting appointment

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of counsel so that he may be properly represented, it is difficult to “do what needs to be done

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while [he] is incarcerated” and so that counsel can advise him of his rights and obligations. ECF

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No. 14. Plaintiff has set forth his claims clearly in his complaint and there is nothing unusual or

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complex about Plaintiff’s claims.

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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. Moreover, Plaintiff

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has not shown a likelihood of success on the merits.

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ORDER DENYING MOTION FOR COUNSEL - 2

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Accordingly, Plaintiff’s motion for the appointment of counsel (ECF No. 14) is
DENIED. The Clerk is directed to send copies of this Order to Plaintiff.

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DATED this

23rd day of January, 2012.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER DENYING MOTION FOR COUNSEL - 3