Faulkner vs. Gonzalez et al

Filing 18

ORDER denying 15 Motion to Appoint Counsel signed by Judge J Richard Creatura.(MET) cc: plaintiff

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

8
9
10

CLARENCE JAY FAULKNER,

11
12
13
14
15
16

Plaintiff,

CASE NO. 3:15-CV-05072-RJB-JRC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
ISRAEL "ROY" GONZALEZ, MICHAEL
PARIS, LIZA ROHRER, CHERYL
SULLIVAN, TERRI MATSEN,
WASHINGTON DEPARTMENT OF
CORRECTIONS,
Defendants.

17
18

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States

19 Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local
20 Magistrate Judge Rules MJR1, MJR3 and MJR4.
21

Currently before the Court is plaintiff’s motion for appointment of counsel (Dkt. 15).

22 Having carefully reviewed the motion and the balance of the record, the Court finds that the
23 motion should be denied because plaintiff has demonstrated his ability to articulate his claims
24
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 1

1 without an attorney and there are no exceptional circumstances compelling the Court to appoint
2 counsel at this time.
3

No constitutional right exists to appointed counsel in a § 1983 action. Storseth v.

4 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 in U.S.
5 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is
6 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may
7 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28
8 U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other
9 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether or not exceptional circumstances
10 exist, the court must evaluate both “the likelihood of success on the merits [and] the ability of the
11 petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.”
12 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718
13 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient
14 grasp of his case or the legal issue involved and an inadequate ability to articulate the factual
15 basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.
16 2004).
17

In his complaint, plaintiff alleges that the Washington Department of Corrections rejected

18 foreign language newspapers and publications that were sent to him (Dkt. 5). Plaintiff contends
19 that this ban on foreign language publications is a violation of the First Amendment (id.).
20 Plaintiff’s motion states that he cannot afford counsel, has limited knowledge of the law and
21 lacks access to a law library (Dkt. 15).
22

Here, despite plaintiff’s argument that he does not have access to a law library, he has

23 demonstrated an ability to articulate his claim under the First Amendment in a clear fashion that
24
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 2

1 is understandable to the Court. While the claim may have merit, it is not possible to determine
2 plaintiff’s likelihood of success at this point in the litigation.
3

Because plaintiff has demonstrated his ability to articulate his claim without an attorney

4 and there are no exceptional circumstances compelling the Court to appoint counsel at this time,
5 the Court denies plaintiff’s motion for appointment of counsel.
6

Therefore, it is ORDERED:

7

(1) Plaintiffs’ motion for appointment of counsel (Dkt. 15) is denied.

8

(2) The Clerk shall send a copy of this Order to plaintiff and counsel for defendants.

9

Dated this 19th day of June, 2015.

10
11

A

12

J. Richard Creatura
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 3