Griffin v. Herzog et al

Filing 75

ORDER denying 67 Motion to Appoint Counsel, signed by Magistrate Judge Theresa L Fricke.**2 PAGE(S), PRINT ALL**(Robert Griffin, Prisoner ID: 851075)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT DEAN GRIFFIN,
Case No. 3:17-cv-05394-RBL-TLF

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Plaintiff,
v.
ROBERT HERZOG, et al,
Defendants.

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ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

This matter comes before the Court on plaintiff’s motion for appointment of counsel.

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Dkt. 67. Having carefully considered that motion and balance of the record, the Court finds it

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should 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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1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff

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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 1

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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 has a limited formal education, he

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does not have extensive experience with the law, he is limited in his ability to litigate this matter

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due to the fact of his incarceration, and the complexity of the issues involved. However, the first

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three asserted bases for seeking appointment of counsel are factors applicable to all inmates, and

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thus do not provide a valid basis for such appointment. Wood v. Housewright, 900 F.2d 1332,

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1334-36 (9th Cir. 1990).
Plaintiff also has not shown the issues in this matter are necessarily complex. Indeed, as

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noted in the Report and Recommendation the undersigned has issued the same date herewith

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recommending dismissal of this action, it is not at all clear what specific claims or issues plaintiff

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is asserting. Nor do the many filings that plaintiff so far has submitted in this matter indicate an

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inability to adequately represent himself pro se. Lastly, for the reasons set forth in the Report and

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Recommendation, plaintiff is not able to establish a likelihood of success on the merits.

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Accordingly, plaintiff’s motion for appointment of counsel (Dkt. 67) is DENIED. The
Clerk shall send a copy of this Order to plaintiff and counsel for defendants.
Dated this 16th day of October, 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