Hahn v. Waddington et al

Filing 57

ORDER Denying Plaintiff's 52 Motion for Appointment of Counsel, signed by Magistrate Judge Theresa L Fricke.**3 PAGE(S), PRINT ALL**(Aaron Hahn, Prisoner ID: 332715)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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AARON HAHN,
Case No. 3:14-cv-05047-RJB-TLF

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Plaintiff,
v.
DOUG WADDINGTON, et al,

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

Defendants.

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This matter comes before the Court on plaintiff’s motion for appointment of counsel.
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Dkt. 52. Having carefully considered that motion and balance of the record, the Court finds it
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should be denied.
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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.”). In “exceptional circumstances,” a district court may appoint
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counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d
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1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis
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supplied.)
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To decide whether exceptional circumstances exist, the Court must evaluate both “the
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likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro
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se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328,
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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 1

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1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff

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

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an inadequate ability to articulate the factual basis of his claim. Agyeman v. Corrections Corp. of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004). That a pro se litigant may be better served with

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the assistance of counsel is not the test. Rand, 113 F.3d at 1525.

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This is plaintiff’s third request for appointment of counsel in this case, the first one since

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this matter was remanded by the Ninth Circuit. See Dkts. 22, 34. Both of those previous motions

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were denied by the Court. See Dkts. 23, 36. In his current motion, plaintiff states he is unable to

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afford counsel, his incarceration will greatly limit his ability to litigate this matter, this case may

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go to trial and an attorney would be better able to present evidence and cross-examine witnesses

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on his behalf, and counsel was appointed for him on appeal to the Ninth Circuit “due to complex

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issues presented.” Dkt. 52, pp. 1-2.

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The fact that plaintiff cannot afford counsel, that his confinement may limit his ability to

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litigate this matter to a certain extent, and that this case may possibly go to trial does not present

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the type of exceptional circumstances that might warrant appointment of counsel at government

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expense. Rather, these are the conditions of imprisonment that all inmates who file civil rights

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complaints in general face. See Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1998)

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(“The instances that [plaintiff] claims indicate the presence of [exceptional circumstances] are

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difficulties which any litigant would have in proceeding pro se; they do not indicate exceptional

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factors.”). Nor has plaintiff demonstrated a likelihood of success, particularly in light of the fact

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that defendants’ remaining arguments in support of their motion to dismiss have not yet been

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resolved. Further, although he may have been appointed counsel in relation to the Ninth Circuit

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proceedings, plaintiff has not shown why that fact warrants similar appointment for proceedings

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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 2

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before this Court, especially in light of the other factors just discussed.
Accordingly, plaintiff’s motion for appointment of counsel (Dkt. 52) is DENIED. The
Clerk shall send a copy of this Order to plaintiff.
Dated this 30th day of August, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 3