Bianchi v. Department of Corrections et al

Filing 36

ORDER denying 23 Motion to Appoint Counsel, signed by Magistrate Judge Theresa L Fricke.(CMG)(cc mailed to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RONALD JAY BIANCHI,
Case No. 3:16-cv-05390-BHS-TLF

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Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, et
al,

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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. Dkt.
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23. Having carefully considered that motion and balance of the record, the Court finds it should
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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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Plaintiff requests appointment of counsel because he only has a GED for education and

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no legal training. However, these bases for seeking appointment of counsel are factors that are

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applicable to all inmates, and thus do not provide a valid basis for such appointment. Wood v.

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Housewright, 900 F.2d 1332, 1334-36 (9th Cir. 1990). Plaintiff also states is having a hard time

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articulating his claim pro se in light of the complexity of the legal issues involved in this case.

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The response to defendants’ motion for summary judgment, however, shows that plaintiff is able

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to articulate his claim. In addition, plaintiff has not shown the issues in this case are necessarily

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too complex for him to proceed pro se. As indicated by the Report and Recommendation issued

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the same date herewith granting defendants’ motion for summary judgment, plaintiff has not

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shown a likelihood of success on the merits.

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Accordingly, plaintiff’s motion for appointment of counsel (Dkt. 23) is DENIED. The
Clerk shall send a copy of this Order to plaintiff and counsel for defendants.
Dated this 1st day of December, 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 - 2