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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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 RONALD JAY BIANCHI, Case No. 3:16-cv-05390-BHS-TLF 7 8 9 Plaintiff, v. DEPARTMENT OF CORRECTIONS, et al, 10 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL Defendants. 11 This matter comes before the Court on plaintiff’s motion for appointment of counsel. Dkt. 12 23. Having carefully considered that motion and balance of the record, the Court finds it should 13 be denied. 14 No constitutional right exists to appointed counsel in a § 1983 action. Storseth v. 15 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 in U.S. 16 Currency, 54 F.3d 564, 569 (9th Cir. 1995) ( “[a]ppointment of counsel under this section is 17 discretionary, not mandatory. ). In“exceptional circumstances, a district court may appoint ” ” 18 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d 19 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis 20 supplied.) 21 To decide whether exceptional circumstances exist, the Court must evaluate both“the 22 likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro 23 se in light of the complexity of the legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, ” 24 25 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL - 1 1 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff 2 must plead facts that show he has an insufficient grasp of his case or the legal issue involved, and 3 an inadequate ability to articulate the factual basis of his claim. Agyeman v. Corrections Corp. of 4 America, 390 F.3d 1101, 1103 (9th Cir. 2004). That a pro se litigant may be better served with 5 the assistance of counsel is not the test. Rand, 113 F.3d at 1525. 6 Plaintiff requests appointment of counsel because he only has a GED for education and 7 no legal training. However, these bases for seeking appointment of counsel are factors that are 8 applicable to all inmates, and thus do not provide a valid basis for such appointment. Wood v. 9 Housewright, 900 F.2d 1332, 1334-36 (9th Cir. 1990). Plaintiff also states is having a hard time 10 articulating his claim pro se in light of the complexity of the legal issues involved in this case. 11 The response to defendants’ motion for summary judgment, however, shows that plaintiff is able 12 to articulate his claim. In addition, plaintiff has not shown the issues in this case are necessarily 13 too complex for him to proceed pro se. As indicated by the Report and Recommendation issued 14 the same date herewith granting defendants’ motion for summary judgment, plaintiff has not 15 shown a likelihood of success on the merits. 16 17 18 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. 19 20 21 A 22 Theresa L. Fricke United States Magistrate Judge 23 24 25 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL - 2

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