Tabb v. NaphCare et al
Filing
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ORDER Denying Plaintiff's 20 and 25 Motions for Appointment of Counsel: This case does not, at this time, present extraordinary circumstances required for the appointment of counsel. Signed by Judge Theresa L Fricke. (SP- cc: plaintiff)
Case 3:21-cv-05541-LK-TLF Document 29 Filed 05/10/22 Page 1 of 3
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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DANNY TABB,
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v.
Plaintiff,
NAPHCARE, et. al.,
Case No. C21-5541 LK-TLF
ORDER DENYING PLAINITFF’S
MOTIONS FOR APPOINTMENT
OF COUNSEL
Defendants.
This matter comes before the Court on plaintiff’s motions for appointment of
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counsel. Dkt. 20, Dkt. 25. For the reasons discussed below, plaintiff’s motions are
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denied without prejudice.
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A plaintiff has no constitutional right to appointed counsel in a § 1983 action.
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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United States v.
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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of
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counsel under this section is discretionary, not mandatory.”). In “exceptional
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circumstances,” a district court may appoint counsel for indigent civil litigants pursuant
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to 28 U.S.C. § 1915(e)(1). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997),
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overruled on other grounds, 154 F.3d 952 (9th Cir. 1998).
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The Court must evaluate both “the likelihood of success on the merits and the
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ability of the petitioner to articulate his claims pro se in light of the complexity of the
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legal issues involved,” to make an assessment whether exceptional circumstances
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ORDER DENYING PLAINITFF’S MOTIONS FOR
APPOINTMENT OF COUNSEL - 1
Case 3:21-cv-05541-LK-TLF Document 29 Filed 05/10/22 Page 2 of 3
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show that counsel should be appointed. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991) (citations omitted). A plaintiff must plead facts that show he has an insufficient
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grasp of his case or the legal issues involved, and an inadequate ability to articulate the
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factual basis of his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101,
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1103 (9th Cir. 2004). Although a pro se litigant may be better served with the assistance
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of counsel, that is not the test. Rand, 113 F.3d at 1525.
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Plaintiff has not shown that his claims are particularly complex or that he is
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unable to articulate the factual basis of his claims pro se. Plaintiff states that he suffers
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from a visual impairment which limits his ability to read and write to short periods of
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time. Dkt. 25. Plaintiff has not made a showing that his reported impairment prevents
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him from adequately litigating this action. Additionally, the plaintiff’s complaint
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demonstrates that plaintiff has an adequate understanding of his case and the legal
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issues involved as well as sufficient ability to articulate the factual basis of the claims.
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Plaintiff states that he has made five unsuccessful attempts to retain private
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counsel to litigate this action. Dkt. 25. However, the inability to obtain counsel due to
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cost, or lack of availability, is not an exceptional circumstance. See, Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1998).
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Further, plaintiff contends that he has limited legal knowledge and limited access
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to the law library. Dkt. 25. Legal knowledge deficiencies or limited access to a law
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library would not constitute an exceptional circumstance – pro se litigants would almost
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invariably encounter these difficulties. See, Wood, 900 F.2d at 1335 (noting that
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plaintiff’s alleged limitations were “difficulties which any litigant would have in
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proceeding pro se.”).
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ORDER DENYING PLAINITFF’S MOTIONS FOR
APPOINTMENT OF COUNSEL - 2
Case 3:21-cv-05541-LK-TLF Document 29 Filed 05/10/22 Page 3 of 3
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This case does not, at this time, present extraordinary circumstances required for
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the appointment of counsel. The Court therefore denies plaintiff’s motions for
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appointment of counsel (Dkt. 20, Dkt. 25) without prejudice. Plaintiff will be allowed to
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renew this motion if, at a later time in the proceedings, exceptional circumstances would
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require appointment of counsel.
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Dated this 10th day of May, 2022.
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A
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Theresa L. Fricke
United States Magistrate Judge
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ORDER DENYING PLAINITFF’S MOTIONS FOR
APPOINTMENT OF COUNSEL - 3
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