Becker v. Carney et al

Filing 228

ORDER DENYING 226 MOTION FOR APPOINTMENT OF COUNSEL AND ORDERING JOINT STATUS REPORT by December 23, 2020, signed by Judge J Richard Creatura. The docket and case caption have been updated to reflect that defendants other than defendant Rhonda Williamson, who has been substituted for deceased defendant Joe Williamson, have been terminated from this matter (see Dkts. 131 , 225 ). (KMC)

Case 3:16-cv-05315-RSM-JRC Document 228 Filed 11/25/20 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ASHER J. BECKER,
Plaintiff,

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v.
RHONDA WILLIAMSON,

CASE NO. 3:16-cv-05315-RBL-JRC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
AND ORDERING JOINT STATUS
REPORT

Defendant.

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This matter is before the Court on referral from the District Court and on plaintiff’s

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motion for the appointment of counsel. Dkt. 226. Plaintiff requests the appointment of pro bono

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counsel to represent him in his 42 U.S.C. § 1983 case. The standards governing this request are

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well-established. There is no right to the appointment of counsel in a § 1983 action, and this

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Court appoints counsel only in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986). In determining whether exceptional circumstances exist, the Court

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looks to both plaintiff’s ability to articulate his claims pro se in light of the complexity of the

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legal issues involved and the likelihood of success on the merits. Id.

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Regarding plaintiff’s likelihood of success on the merits, one of plaintiff’s claims—his
claim that defendant Joe Williamson unconstitutionally retaliated against plaintiff—has survived
ORDER DENYING MOTION FOR APPOINTMENT
OF COUNSEL AND ORDERING JOINT STATUS
REPORT - 1

Case 3:16-cv-05315-RSM-JRC Document 228 Filed 11/25/20 Page 2 of 3

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a summary judgment motion asserting a qualified immunity defense. See Dkt. 219, at 16; Dkt.

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225. It appears likely that this claim will proceed to trial. Plaintiff has therefore shown at least

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some likelihood of success on the merits.

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But establishing a likelihood of success, alone, is not the end of the matter: plaintiff must

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also show that he is unable to articulate his claims in light of their complexity. See Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (“Neither of these factors is dispositive and both

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must be viewed together before reaching a decision.”). A pro se plaintiff is not automatically

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entitled to the appointment of counsel even if the matter proceeds to trial.

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Here, plaintiff’s remaining claim is relatively straightforward: he asserts that deceased

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defendant Joe Williamson retaliated against plaintiff by threatening to have plaintiff transferred

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and by telling other prisoners that Williamson would cancel certain events and meal

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enhancements if plaintiff continued filing grievances and making complaints. See Dkt. 219, at

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11. And, a review of the record reveals that plaintiff is well able to articulate his claim. For

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example, in response to an order for supplemental briefing, plaintiff submitted a seven-page brief

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that relied on the appropriate legal standards, provided ample legal citations and support for his

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position, and explained his theory of retaliation. See Dkt. 216.

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The Court has reviewed plaintiff’s arguments in his request for the appointment of

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counsel and is not persuaded that plaintiff is experiencing the exceptional circumstances that

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would justify such a request. Although plaintiff cites his lack of experience litigating, this is a

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circumstance common to most pro se litigants and not an exceptional circumstance.

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Plaintiff explains that he has now been released—a factor that, in the Court’s view
weighs against appointing counsel—but that he is under the supervision of the Department of

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ORDER DENYING MOTION FOR APPOINTMENT
OF COUNSEL AND ORDERING JOINT STATUS
REPORT - 2

Case 3:16-cv-05315-RSM-JRC Document 228 Filed 11/25/20 Page 3 of 3

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Corrections. Dkt. 226, at 2. Plaintiff fears that he will not be granted permission to leave Kitsap

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County to appear for hearings. Dkt. 226, at 2.

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The Court notes that in light of the COVID-19 health crisis, an in-person hearing is

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unlikely to be required in the foreseeable future. Even if plaintiff had to appear in Court in

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person, plaintiff has provided no more than speculation that he could not obtain permission to do

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so. Therefore, the Court is not persuaded that plaintiff’s current status merits granting his

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motion.

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The Court DENIES the motion for appointment of counsel (Dkt. 226) without prejudice.
Because the denial of the motion is without prejudice, plaintiff may renew his motion if future,
exceptional circumstances arise that render litigating this matter pro se impossible.
In addition, the parties are DIRECTED to submit a joint status report on or before

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December 23, 2020, that sets forth whether mediation or other alternative dispute resolution

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would be of assistance to resolving the remaining claim, a proposed trial date, the estimated

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length of the trial, and any other appropriate matters.

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Finally, the Clerk’s Office will update the docket and case caption to reflect that

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defendants other than defendant Rhonda Williamson, who has been substituted for deceased

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defendant Joe Williamson, have been terminated from this matter (see Dkts. 131, 225) and will

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send a copy of this Order to plaintiff.

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Dated this 25th day of November, 2020.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING MOTION FOR APPOINTMENT
OF COUNSEL AND ORDERING JOINT STATUS
REPORT - 3