Lynch v. Department of Corrections

Filing 14

ORDER denying 12 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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ROBERT SHAWN LYNCH,
No. C13-5289 RJB/KLS
Plaintiff,
v.

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DEPARTMENT OF CORRECTIONS, R.
NUTT,

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ORDER DENYING PLAINTIFF’S
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. 12.

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Having carefully reviewed the motion, Defendants’ opposition (ECF No. 13), and balance of the
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record, the Court finds that the 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
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
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]

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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 alleges that he injured his middle finger when he closed a barred gate on it. The
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only defendant is the Department of Corrections. ECF No. 6. Plaintiff requests the appointment

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of counsel because he is indigent and has been unable to find counsel to take his case. ECF No.

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12. These are not exceptional circumstances.

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Plaintiff has clearly shown an ability to articulate his claims in a clear fashion
understandable to the Court. In addition, this case does not involve complex facts or law and
Plaintiff has yet to show that he is likely to succeed on the merits of his case.

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Plaintiff has failed in his burden to demonstrate an inability to present his claims to this
Court without counsel and has failed to demonstrate that exceptional circumstances exist to
justify the appointment of counsel.

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Accordingly, it is ORDERED:

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(1)
ORDER - 2

Plaintiff’s motion for counsel (ECF No. 12) 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 3rd day of October, 2013.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 3