Walls-Stewart v. Gilbert et al

Filing 46

ORDER Denying 32 Motion for Appointment of Counsel; and directing the Clerk to correct the docket to reflect the Court's earlier denial of Plaintiff's 24 Motion to Strike the Declaration of Mary Fisher, in the September 21, 2016 33 Report and Recommendation; by Magistrate Judge David W. Christel.**3 PAGE(S), PRINT ALL** (Hillary Walls-Stewart, Prisoner ID: 756217)(GMR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 HILLARY WALLS-STEWART, 11 Plaintiff, 13 14 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. 12 CASE NO. 3:16-CV-05584-BHS-DWC MARGARET GILBERT, G. STEVEN HAMMOND, DAN PACHOLKE, ERIN LYSTAD, SARA SMITH, RICHARD MORGAN, JOHN/JANE DOE, 15 Defendants. 16 17 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 18 Judge David W. Christel. Currently pending in this action is Plaintiff Hillary Walls-Stewart’s 1 19 Motion for the Appointment of Counsel (“Motion”). Dkt. 32. No constitutional right to 20 appointed counsel exists in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 21 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 22 (“[a]ppointment of counsel under this section is discretionary, not mandatory”). However, in 23 1 Also pending in this action is Plaintiff’s “Motion to Seal Plaintiff Reply for Appointment of Counsel,” 24 which is ready for the Court’s consideration on October 21, 2016. See Dkt. 38. ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL - 1 1 “exceptional circumstances,” a district court may appoint counsel for indigent civil litigants 2 pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 3 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide 4 whether exceptional circumstances exist, the Court must evaluate both “the likelihood of success 5 on the merits [and] the ability of the [plaintiff] to articulate h[er] claims pro se in light of the 6 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 7 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead 8 facts showing she has an insufficient grasp of her case or the legal issues involved and an 9 inadequate ability to articulate the factual basis of her claims. Agyeman v. Corrections Corp. of 10 America, 390 F.3d 1101, 1103 (9th Cir. 2004). 11 In Plaintiff’s Motion and Reply, she states appointed counsel is necessary because her 12 claims have merit, the issues involved in her case are complex, she is uneducated, she has limited 13 access to legal materials, and she suffers from mental health problems. Dkt. 32, 40. Plaintiff also 14 states her case will likely require expert witnesses and depositions of numerous witnesses. Dkt. 15 32. At this time, Plaintiff has not shown, nor does the Court find, this case involves complex 16 facts or law. See Dkt. 16. Plaintiff has also not shown an inability to articulate the factual basis of 17 her claims in a fashion understandable to the Court or shown she is likely to succeed on the 18 merits of her case. The Court notes Plaintiff has adequately articulated her claims in a Complaint 19 and an Amended Complaint, and has filed several additional motions and responses which were 20 understandable to the Court. See e.g. Dkt. 6, 11, 16, 23, 24, 27. Further, “Plaintiff's incarceration 21 and limited access to legal materials are not exceptional factors constituting exceptional 22 circumstances that warrant the appointment of counsel. Rather, they are the type of difficulties 23 24 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL - 2 1 encountered by many pro se litigants.” Dancer v. Jeske, 2009 WL 1110432, *1 (W.D. Wash. 2 Apr. 24, 2009). Accordingly, Plaintiff’s Motion is denied without prejudice. 3 The Court notes Plaintiff’s Motion to Strike the Declaration of Mary Fisher (“Motion to 4 Strike”) is still docketed as a pending motion. See Dkt. 24. The Court denied Plaintiff’s Motion 5 to Strike in the September 21, 2016 Report and Recommendation. Dkt. 33, fn. 2. Therefore, the 6 Clerk is directed to correct the docket to reflect the Motion to Strike has been denied. 7 Dated this 18th day of October, 2016. A 8 9 David W. Christel United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL - 3

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