Thibodeaux v. White et al

Filing 87

ORDER denying 81 Motion to Appoint Counsel, signed by Judge J Richard Creatura. **4 PAGE(S), PRINT ALL**(Louis Thibodeaux, Prisoner ID: 941031)(KMC)

Case 3:20-cv-05110-BHS-JRC Document 87 Filed 02/17/21 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LOUIS JAMES THIBODEAUX,

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CASE NO. 3:20-cv-05110-BHS-JRC

Plaintiff,

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ORDER DENYING MOTION TO
APPOINT COUNSEL

v.
DANIEL WHITE, et al.,
Defendants.

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This matter is before the Court on plaintiff’s third motion for the appointment of counsel

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to represent him in this civil rights matter. See Dkt. 81. For the reasons discussed below, the

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Court denies plaintiff’s motion.

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BACKGROUND
Plaintiff, who is incarcerated, initiated this matter in February 2020. See Dkt. 1. The
Court granted plaintiff permission to proceed in forma pauperis and served his complaint. See

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ORDER DENYING MOTION TO APPOINT COUNSEL
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Case 3:20-cv-05110-BHS-JRC Document 87 Filed 02/17/21 Page 2 of 4

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Dkts. 7, 12. The Court also denied plaintiff’s first two motions for appointment of counsel

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without prejudice. Dkts. 31, 64.

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The parties have filed cross-motions for summary judgment. See Dkts. 66, 67. The

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undersigned issued a report and recommendation on the parties’ cross motions, including

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recommending that the cross-motions be denied regarding two of plaintiff’s claims. Dkt. 86.

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Currently pending is plaintiff’s third motion for appointment of counsel, which plaintiff filed

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after briefing on the cross-summary judgment motions was complete. See Dkt. 81.

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DISCUSSION

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Plaintiff requests the appointment of counsel on the basis that he tested positive for

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COVID-19 on or before January 6, 2021, and could not access the library; that he cannot afford

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an attorney; and that an attorney could obtain various records for plaintiff. See Dkt. 81, at 1–2.

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There is no constitutional right to appointed counsel in a § 1983 civil action, and whether

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to appoint counsel is within this Court’s discretion. Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.

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1995). Appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1) requires

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“exceptional circumstances.” See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing

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former 28 U.S.C. § 1915(d) (1996)), overruled on other grounds, 154 F.3d 952 (1998). To

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

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

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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)). “Neither of these

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factors is dispositive and both must be viewed together[.]” Id.

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ORDER DENYING MOTION TO APPOINT COUNSEL
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Case 3:20-cv-05110-BHS-JRC Document 87 Filed 02/17/21 Page 3 of 4

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Plaintiff has shown some likelihood of success on the merits for at least two of his

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claims. In the Report and Recommendation, the undersigned found genuine issues of material

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fact related to plaintiff’s claims against a nurse and corrections officer under 42 U.S.C. § 1983.

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See Dkt. 86.

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However, the analysis does not end, and the Court does not appoint counsel, simply

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because there is some likelihood of success on the merits. See Wilborn, 789 F.2d at 1331. The

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Court must also look to plaintiff’s ability to articulate his claims in light of their complexity.

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Plaintiff has aptly litigated his claims to date. He has explained why his three prior

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strikes did not prevent him from proceeding in forma pauperis. Dkt. 7, at 1. He has articulated a

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plausible theory of liability that resulted in the District Court granting plaintiff leave to amend

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his claim when considering a prior report and recommendation. See Dkt. 50, at 2. He has filed

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many motions, including citations to legal authority and cognizable arguments in support of his

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claims in this matter. And most recently, plaintiff has successfully argued that the Court should

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not recommend summary judgment dismissal of two of his claims. See Dkts. 66, 74. Plaintiff’s

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remaining claims are not unusually complex, and he has shown that he is able to articulate those

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claims in light of their complexity.

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Moreover, plaintiff’s arguments in his motion to appoint counsel are unpersuasive. The

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Court is not convinced that plaintiff’s positive COVID-19 diagnosis at some time more than a

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month ago merits the appointment of counsel now. Notably, less than a week after filing his

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most recent motion for appointment of counsel, plaintiff filed a sur-reply related to the cross-

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summary judgment motions (Dkt. 84), which included case citations and arguments directed

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toward defendants’ briefing.

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ORDER DENYING MOTION TO APPOINT COUNSEL
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Case 3:20-cv-05110-BHS-JRC Document 87 Filed 02/17/21 Page 4 of 4

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Plaintiff’s financial circumstances alone are not exceptional circumstances justifying the

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appointment of counsel. Nor is his bare assertion that he needs counsel in order to obtain a video

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tape and unspecified “other documents.” Dkt. 81, at 2. Appointment of counsel is not

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appropriate merely because an attorney would be more adept at managing discovery requests.

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For all these reasons, the Court denies the motion to appoint counsel (Dkt. 81). This

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order is again without prejudice, in the event that circumstances may require the Court to

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consider a renewed motion in the future.

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Dated this 17th day of February, 2021.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING MOTION TO APPOINT COUNSEL
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