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)

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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

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