Worley v. Hammond et al

Filing 24

ORDER that the portion of plaintiff's motion to extend time 14 requesting appointment of counsel is DENIED. Signed by Magistrate Judge Theresa L Fricke. **3 PAGE(S), PRINT ALL**(Larry Worley, Prisoner ID: 821452)(CMG)

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5
6
7

LARRY WORLEY, a/k/a ARYANA
WORLEY,
Plaintiff,

8
9

v.

Case No. 3:17-cv-05497-RJB-TLF
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

STEVE HAMMOND, et al.,

10

Defendants.

11
This matter is before the Court on plaintiff’s Motion to Extend Time, Dkt. 14, in which
12
plaintiff also asked the Court to appoint counsel. On November 20, 2017, the Court granted
13
plaintiff’s motion for an extension of time to respond to defendants’ motion to dismiss but
14
reserved the issue of appointing counsel. Dkt. 18. The Court now considers that issue and
15
determines that appointment of counsel is not warranted under the present circumstances of this
16
case.
17
No constitutional right exists to appointed counsel in a § 1983 action. Storseth v.
18
Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v. $292,888.04 in U.S.
19
Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is
20
discretionary, not mandatory.”). In “exceptional circumstances,” a district court may appoint
21
counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d
22
1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis
23
supplied.)
24
25
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 1

1
2
3

The Court previously granted plaintiff’s application to proceed in forma pauperis. Dkt. 2;
28 U.S.C. § 1915(e)(1).
To decide whether exceptional circumstances exist, the Court must evaluate both “the

4

likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro

5

se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328,

6

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

7

must plead facts that show he has an insufficient grasp of the case or the legal issue involved,

8

and an inadequate ability to articulate the factual basis of the claim. Agyeman v. Corrections

9

Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). That a pro se litigant may be better

10
11

served with the assistance of counsel is not the test. Rand, 113 F.3d at 1525.
While plaintiff’s complaint names two individual defendants, Steve Hammond and Karie

12

Rainer, it fails to provide facts that could reasonably support an Eighth Amendment claim for

13

damages against either of them in their personal capacity, even when the complaint is liberally

14

construed. To obtain relief against a defendant under 42 U.S.C. § 1983, plaintiff will need to

15

prove that the particular defendant has caused or personally participated in causing the

16

deprivation of a particular protected constitutional right. Arnold, 637 F.2d at 1355. But the

17

complaint alleges no facts specific to either named defendant. Conclusory and unsupported

18

allegations against “defendants” in general are insufficient. See Sherman v. Yakahi, 549 F.2d

19

1287, 1290 (9th Cir. 1977). To the extent the plaintiff is asserting violations of her constitutional

20

rights by these defendants in their official capacity solely for State policies and practices that

21

would be addressed by prospective-only injunctive relief, the case at this stage is not developed

22

and the Court cannot assess the likelihood of any party’s success on the merits.

23
24
25
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 2

1

Because plaintiff has not shown a likelihood of success, this case presently lacks the

2

“exceptional circumstances” that would justify appointment of counsel. Wilborn, 789 F.2d at

3

1331. Accordingly, the portion of plaintiff’s Motion to Extend Time, Dkt. 14, requesting

4

appointment of counsel is DENIED.

5

Dated this 8th day of December, 2017.

6
7
8

A

9

Theresa L. Fricke
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 3