Johnson v. Di Vittorio et al

Filing 13

ORDER denying 9 Motion to hold the original complaint in abeyance; denying 10 Motion to Appoint Counsel. The amended complaint remains due on or before 1/25/13. Signed by Magistrate Judge J Richard Creatura.(CMG; cc to Plaintiff)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

ROBERT E. JOHNSON,

11
12
13
14
15
16
17
18
19
20
21
22

Plaintiff,

CASE NO. C12-6018 RJB-JRC
ORDER ON PENDING MOTIONS

v.
SARA DI VITTORIO et al.,
Defendants.

The District Court has referred this 42 U.S.C. §1983 civil rights action to the undersigned
Magistrate Judge. The authority for the referral is found in 28 U.S.C. §§ 636(b)(1)(A) and (B)
and Local Magistrate Judges Rules MJR 1, MJR 3, and MJR 4.
Plaintiff has filed a motion asking that his original complaint be held in abeyance pending
a ruling on his objections to the Court’s order that he file an amended complaint (ECF No. 9).
Plaintiff has also filed a motion asking for appointment of counsel (ECF No. 10). There is not yet
a party to respond to plaintiff’s motions because no defendant has been served in this action.
Therefore, there is no reason to wait until the noting date to address these two motions.

23
24

ORDER ON PENDING MOTIONS - 1

1

The motion to hold the original complaint in abeyance is DENIED. The original

2 complaint is part of the electronic file (ECF No. 5). The original complaint will remain part of
3 the file and not be deleted. Therefore, there is no reason to hold the document in abeyance.
4

The motion for appointment of counsel is also DENIED. There is no right to have

5 counsel appointed in cases brought under 42 U.S.C. § 1983. Although the court can request
6 counsel to represent a party, 28 U.S.C. § 1915(e) (1), the court may do so only in exceptional
7 circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy,
8 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding
9 of exceptional circumstances requires an evaluation of both the likelihood of success on the
10 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of
11 the legal issues involved. Wilborn, 789 F.2d at 1331.
12

Plaintiff has demonstrated an ability to articulate his claims pro se. His pleadings are

13 replete with legal authority. See (ECF No. 10, motion for appointment of counsel). The Court
14 does not have a servable complaint before it at this time and therefore cannot evaluate plaintiff’s
15 likelihood of success on the merits.
16

Plaintiff’s amended complaint remains due on or before January 25, 2013.

17

Dated this 16th day of January, 2013.

18
19

A
J. Richard Creatura
United States Magistrate Judge

20
21
22
23
24

ORDER ON PENDING MOTIONS - 2