Wiggin v. Rollins et al

Filing 10

ORDER denying 6 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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JAMES O’NEIL WIGGIN,
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Plaintiff,
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v.

CASE NO. C13-5057 BHS/KLS

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WILLIAM ROLLINS, R. BEDNACZYK,
RICHARD ENDERS, BO GUESCHEL,
MARK BEITER, MARY KEPPLER,
ROBERTA KANIVE, TIM PANEK,
YELENA BROKHIS, SHERYL
ALBERT, FRANK LONGANO, KELLY
REMY, MARTHA NEWLON, FRED
NAVARRO, J. DAVID KENNEDY,
STEVE HAMMOND, LONIE
FIGUEROA, JOHN DOMINOSKI,
RANDALL PIERCE, SARAH SMITH,
DEAN KAO, FLO FADELE, JOHN DOE
NOS. 1-2,

ORDER DENYING MOTION FOR
COUNSEL

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Defendants.
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Before the Court is Plaintiff’s Motion for Appointment of Counsel. ECF No. 6. Having
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carefully considered the motion and balance of the record, the Court finds that the motion should
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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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ORDER DENYING MOTION FOR COUNSEL- 1

1 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28
2 U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other
3 grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis supplied.) To decide whether exceptional
4 circumstances exist, the court must evaluate both “the likelihood of success on the merits [and]
5 the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal
6 issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting
7 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he
8 has an insufficient grasp of his case or the legal issue involved and an inadequate ability to
9 articulate the factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d
10 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.

12 Rand, 113 F.3d at 1525. Moreover, the need for discovery does not necessarily qualify the issues
13 involved as “complex.” Wilborn, 789 F.2d at 1331. Most actions require development of further
14 facts during litigation. But, if all that was required to establish the complexity of the relevant
15 issues was a demonstration of the need for development of further facts, then practically all cases
16 would involve complex legal issues. Id.
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Plaintiff states that he is unable to afford counsel and has not been able to obtain counsel.

18 ECF No. 6. He also states that his imprisonment will greatly limit his ability to litigate, that the
19 issues involved are complex, and that his legal knowledge and access to the law library are
20 limited. Id., p. 1. These are not exceptional circumstances. Plaintiff filed his complaint pro se
21 and has demonstrated an ability to articulate his claims pro se in a clear fashion understandable
22 to this Court. Based on Plaintiff’s allegations, the Court notes that this is not a complex case
23 involving complex facts or law. In addition, Plaintiff presents no evidence to show that he is
24 likely to succeed on the merits of his case. While Plaintiff may not have vast resources or legal

ORDER DENYING MOTION FOR COUNSEL- 2

1 training, he meets the threshold for a pro se litigant. Concerns regarding investigation, access to
2 legal resources or examination of witnesses are not exceptional factors, but are the type of
3 difficulties encountered by many pro se litigants. Plaintiff has failed in his burden to demonstrate
4 an inability to present his claims to this Court without counsel.
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Accordingly, it is ORDERED:

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(1)

Plaintiff’s motion for counsel (ECF No. 6) is DENIED.

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(2)

The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants.

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DATED this 6th day of February, 2013.

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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