Terwilleger v. State of Washington et al

Filing 35

ORDER granting Plaintiff's 11 Motion to Reopen Case; and denying without prejudice Plaintiff's 11 MOTION to appoint counsel. Signed by Magistrate Judge David W. Christel.**3 PAGE(S), PRINT ALL**(Brian Terwilleger, Prisoner ID: 989522)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRIAN TERWILLEGER,

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CASE NO. 3:17-cv-05360-RJB-DWC

Plaintiff,
v.
STATE OF WASHINGTON, et al.,

ORDER REOPENING CASE AND
DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Defendants.

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Plaintiff Brian Terwilleger, proceeding pro se, filed this civil rights Complaint under 42

17 U.S.C. § 1983. In July of 2017, the Honorable Robert Bryan dismissed the case without
18 prejudice because plaintiff had failed to state a claim for which relief could be granted. Dkt. 10.
19 Plaintiff subsequently filed a Motion to Reopen the Case and Application for Court Appointed
20 Counsel (“Motion”). Dkt. 11. Having reviewed his Amended Complaint and the Motion, the
21 Court grants the Motion in part and denies in part.
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BACKGROUND
Plaintiff filed this action in May of 2017. Dkt. 1. After Judge Bryan identified several

24 deficiencies in Plaintiff’s Complaint and Plaintiff failed to remedy them, Judge Bryan dismissed
ORDER REOPENING CASE AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL - 1

1 Plaintiff’s case without prejudice. Dkt. 10. After filing his Motion (Dkt. 11), Judge Bryan
2 directed Plaintiff to file an Amended Complaint and referred the case to the undersigned
3 magistrate judge (Dkt. 12). After extending Plaintiff’s time to file several times (Dkts. 17, 25),
4 Plaintiff successfully filed his Amended Complaint (Dkt. 26). The Court noted that his Amended
5 Complaint was ready for service, but required a prison trust account statement to evaluate his
6 Motion for Leave to Proceed In Forma Pauperis (“Motion for IFP”). Dkt. 30. Plaintiff has now
7 provided his prison trust account statement. Dkt. 32
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DISCUSSION
As the Court noted in its previous Order, Plaintiff’s Amended Complaint has remedied

10 the deficiencies noted by Judge Bryan and is ready for service upon Defendants. See Dkt. 30.
11 Therefore, Plaintiff’s Motion is granted insofar as he requests that his case be reopened. The
12 Court will file separate Orders granting IFP status and directing service.
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However, Plaintiff has not demonstrated that he requires appointed counsel at this time.

14 Appointed counsel in § 1983 cases is only appropriate under “exceptional circumstances.” Rand
15 v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th
16 Cir. 1998). To decide whether exceptional circumstances exist, the Court must evaluate both “the
17 likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro
18 se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328,
19 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Here,
20 though the case has been reopened, Defendants have not yet been served nor have they had a
21 chance to respond to Plaintiff’s claims. It is far too early in the case to evaluate Plaintiff’s
22 likelihood of success. Further, Plaintiff has followed the Court’s instructions, remedied his
23 deficiencies, and generated an Amended Complaint that adequately articulates his claims.
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ORDER REOPENING CASE AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL - 2

1 Because of this, Plaintiff has not yet demonstrated the exceptional circumstances required for
2 appointed counsel. Therefore, the Court denies Plaintiff’s Motion without prejudice insofar as he
3 requests appointed counsel.
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CONCLUSION
Plaintiff’s Motion (Dkt. 11) is granted insofar as he requests his case be reopened. The

6 Clerk is directed to reopen Plaintiff’s case.
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Plaintiff’s Motion (Dkt. 11) is denied without prejudice insofar as he requests appointed

8 counsel. Plaintiff may again request counsel at a later date if he can demonstrate the necessary
9 exceptional circumstances.
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The Court will grant Plaintiff IFP status and direct service of the Amended Complaint in

11 separate Orders.
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Dated this 5th day of January, 2018.

A

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David W. Christel
United States Magistrate Judge

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ORDER REOPENING CASE AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL - 3