Bistryski v. DOC Health Services of Stafford Creek Corrections Center et al

Filing 19

ORDER Denying 7 Motion for the Appointment of Counsel, signed by Magistrate Judge Theresa L Fricke. **2 PAGE(S), PRINT ALL** (Christopher Bistryski, Prisoner ID: 306886) (GMR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 CHRISTOPHER ANDREW BISTRYSKI, CASE NO. 3:17-cv-5369 RJB-TLF Plaintiff, 9 ORDER DENYING MOTION FOR COUNSEL v. 10 11 12 DEPARTMENT OF CORRECTIONS HEALTH SERVICES, et al., Defendants. 13 Before the Court is Plaintiff Christopher Bistryski’s motion for the appointment of 14 counsel. Dkt. 7. Mr. Bistryski states that he requires appointment of counsel as he has been 15 unable to obtain counsel on his own and he is indigent. Id. 16 DISCUSSION 17 There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. 18 Although the court, under 28 U.S.C. § 1915(d), can request counsel to represent a party 19 proceeding in forma pauperis, the court may do so only in exceptional circumstances. Wilborn v. 20 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 21 Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional 22 circumstances requires an evaluation of both the likelihood of success on the merits and the 23 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 24 ORDER DENYING MOTION FOR COUNSEL- 1 1 involved. Wilborn, 789 F.2d at 1331. Neither of these factors is dispositive and both must be 2 viewed together before reaching a decision on request of counsel under Section 1915(d). Id. 3 Plaintiff has demonstrated an adequate ability to articulate his claims pro se but has not 4 demonstrated that the issues involved in this case are complex. Plaintiff’s incarceration and 5 limited legal training are not exceptional factors constituting exceptional circumstances that 6 warrant the appointment of counsel. Rather, they are the type of difficulties encountered by many 7 pro se litigants. Plaintiff has also not shown a likelihood of success on the merits. See, e.g., 8 Wilborn, 789 F.2d at 1331. 9 Accordingly, it is ORDERED: 10 (1) Plaintiff’s motion for the appointment of counsel (Dkt. 7) is DENIED. 11 (2) The Clerk of Court is directed to send a copy of this Order to plaintiff and to 12 counsel for defendants. 13 Dated this 30th day of August, 2017. 14 A 15 16 Theresa L. Fricke United States Magistrate Judge 17 18 19 20 21 22 23 24 ORDER DENYING MOTION FOR COUNSEL- 2

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