Nanez v. Daniels et al

Filing 23

ORDER denying 5 Motion to Appoint Counsel, signed by Magistrate Judge Theresa L Fricke.**2 PAGE(S), PRINT ALL**(Shawn Nanez, Prisoner ID: 336785)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SHAWN DALE NANEZ,
Case No. C17-5663-RBL-TLF

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Plaintiff,
v.
KAREN DANIELS 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. 5. Plaintiff states he has written to twenty-eight (28) attorneys between June 2015 and

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August 2017. Dkt. 5, at 4. He states he believes his complaint has merit because his rights were

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violated, he sustained physical and psychological damages from intentional cruel and unusual

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punishment, and defendants were aware of this and yet “continued to inflict cruel and unusual

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punishment.” Dkt. 5, at 5. Having carefully considered the motion and balance of the record, the

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Court finds plaintiff’s motion 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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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL - 1

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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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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). Although a pro se litigant may be better served

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with the assistance of counsel, being better served by a lawyer as opposed to being a pro se

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litigant is not the legal criteria. See Wilborn, 789 F.2d at 1331; Rand, 113 F.3d at 1525.

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Plaintiff’s pleadings appear to demonstrate an adequate ability to articulate his claims pro

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se and he has not demonstrated that the issues involved in this case are complex. Furthermore,

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plaintiff has also not shown a likelihood of success on the merits but merely restates the

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allegations of his complaint and asserts legal conclusions. See, e.g., Wilborn, 789 F.2d at 1331.

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Accordingly, plaintiff’s motion for appointment of counsel (Dkt. 5) is DENIED. The
Clerk shall send a copy of this Order to plaintiff.
Dated this 30th day of January, 2018.

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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