Cross v. Department of Corrections

Filing 62

ORDER Denying 46 Motion to Appoint Counsel signed by Magistrate Judge J Richard Creatura. **3 PAGE(S), PRINT ALL**(Ryan Cross, Prisoner ID: 382374)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RYAN CROSS,
Plaintiff,

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CASE NO. 3:18-cv-05186 RJB-JRC
ORDER DENYING
APPOINTMENT OF COUNSEL

v.
ROSS, ET AL,
Defendant.

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The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate

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Judge J. Richard Creatura. Plaintiff Ryan Cross, proceeding pro se and in forma pauperis, has

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pending before the Court a motion for appointment of counsel. Dkt. 46.

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Although indigent defendants in criminal cases are entitled to appointed counsel, there is

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no constitutional right to appointed counsel in a § 1983 civil action. See Storseth v. Spellman,

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654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d

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564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is discretionary, not

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mandatory”). However, in “exceptional circumstances,” a district court may appoint counsel for

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indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand

ORDER DENYING APPOINTMENT OF COUNSEL - 1

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v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th

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Cir. 1998). 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 [plaintiff] 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 showing he has an insufficient grasp of his case or the legal issues involved and

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an inadequate ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp.

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of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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Plaintiff, who alleges a soy allergy, has asserted that defendants have violated his rights

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by denying him a soy-free diet. Dkt. 18, p. 3. Plaintiff made a motion for summary judgment,

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which this Court recommended be denied because whether or not plaintiff suffered from a soy

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allergy was still an issue of material fact. Dkts. 38, 41, 50. Subsequently, defendants filed a

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motion for summary judgment. Dkt. 53. Because this Court has not yet made a recommendation

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on defendant’s motion for summary judgment, it is too early to determine the likelihood of

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plaintiff’s success on the merits of his claim.

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Further, plaintiff has not shown that he has an insufficient grasp of either the factual or

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legal basis for his claim. On the contrary, plaintiff is articulate and able to describe the alleged

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wrongs and the legal principles underlying them in a way that is understandable to the Court at

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this time. Plaintiff has filed multiple motions, many of which are duplicative. While this Court

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does not condone duplicative motions, and some of plaintiff’s pleadings demonstrate his lack of

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legal training, he appears to be able to articulate himself and understand, to a basic degree, the

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legal underpinnings of his case. It further demonstrates plaintiff’s ability to maintain awareness

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of the developments in his case and respond to defendant’s motions. Though it may be easier for

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ORDER DENYING APPOINTMENT OF COUNSEL - 2

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plaintiff to prosecute his case with the assistance of counsel, convenience alone is not enough to

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warrant appointment of counsel. Because of this, plaintiff has not demonstrated the exceptional

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circumstances necessary to for the Court to order appointment of counsel.

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Therefore, for the reasons stated above, plaintiff’s motion to appoint counsel (Dkt. 46) is

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denied without prejudice, which means that the Court can consider such a motion at a later time

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after the case has developed further.

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Dated this 1st day of November, 2018.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING APPOINTMENT OF COUNSEL - 3