Tafoya v. Ferguson

Filing 11

ORDER signed by Magistrate Judge J Richard Creatura Extending Deadline to Show Cause and Denying 8 Motion to Appoint Counsel. Plaintiff's deadline to file an amended complaint or otherwise address the deficiencies identified in the Court� 39;s previous order to show cause or amend (Dkt. 7 ) is extended to July 27, 2018. (GMR- cc: pltf with 7 Order to Show Cause, all associated forms for filing 42 U.S.C. § 1983 civil rights complaint and for service, and pro se instruction sheet)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEVEN TAFOYA,
Plaintiff,

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v.
ROBERT FERGUSON,

CASE NO. 3:18-cv-05261-BHS-JRC
ORDER EXTENDING DEADLINE
TO SHOW CAUSE AND DENYING
APPOINTMENT OF COUNSEL

Defendant.

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

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Judge J. Richard Creatura. Currently pending in this action is plaintiff Steven Tafoya’s motion

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for appointment of counsel. Dkt. 8.

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No constitutional right to appointed counsel exists in a § 1983 action. Storseth v.

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Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see 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”). However, in “exceptional circumstances,” a district court may

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appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Roland,

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ORDER EXTENDING DEADLINE TO SHOW CAUSE
AND DENYING APPOINTMENT OF COUNSEL - 1

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113F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998).

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To decide whether exceptional circumstances exist, the Court must evaluate both “the likelihood

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of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light

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of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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

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facts showing he has an insufficient grasp of his case or the legal issues involved and an

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

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

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Plaintiff argues that, because he is indigent and has attempted to retain pro bono counsel

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without success, he is entitled to counsel appointed by the Court. Dkt. 8. However, as noted

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above, appointment of counsel is only appropriate under exceptional circumstances. In his

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complaint, plaintiff alleged that his constitutional rights were violated when he was housed in

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segregation because of his mental health issues. Dkt. 6, p. 5. Plaintiff’s claim is a relatively

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straight forward allegation that he was unlawfully placed in segregation, presumably in violation

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of the Eighth Amendment. Dkt. 6. He has shown he can adequately advocate for himself at this

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stage in the proceedings. Plaintiff has not shown the exceptional circumstances necessary to

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appoint counsel and the Court denies his motion (Dkt. 8) without prejudice.

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The Court notes that plaintiff still has not cured the deficiencies identified in the Court’s

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initial order to show cause. Plaintiff failed to allege personal participation by the named

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defendant. Dkt. 7. However, the Court interprets plaintiff’s motion to appoint counsel as intent

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to continue prosecuting his case. Therefore, the Court extends plaintiff’s deadline to file an

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amended complaint or otherwise address the deficiencies identified in the Court’s previous order

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to show cause or amend (Dkt. 7) to July 27, 2018.

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ORDER EXTENDING DEADLINE TO SHOW CAUSE
AND DENYING APPOINTMENT OF COUNSEL - 2

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The Clerk is directed to note the above date on the docket. The Clerk is also directed to

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provide plaintiff with a copy of this order, a copy of the Court’s previous order to show cause or

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amend (Dkt. 7), and provide plaintiff with the forms necessary for filing a 42 U.S.C. § 1983 civil

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rights complaint and for service. The Clerk is also directed to provide plaintiff with a copy of the

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Pro Se Instruction Sheet.

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Dated this 26th day of June, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER EXTENDING DEADLINE TO SHOW CAUSE
AND DENYING APPOINTMENT OF COUNSEL - 3