United States District Court, W.D. Washington, Tacoma
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE
District Court has referred this action filed under 42 U.S.C.
§ 1983 to United States Magistrate Judge David W.
Christel. Currently pending before the Court are
Defendants' Motion to Strike Statement (“Motion to
Strike”), and Plaintiff's Motion Requesting Counsel
(“Motion for Counsel”) and Motion to Submit Sworn
Declaration of Witness Jessyca Swatman (“Motion to
Submit”). Dkt. 41, 48, 50. After review of the three
Motions and the relevant record, the Motion to Strike (Dkt.
41) is granted and the Motion for Counsel (Dkt. 48) and
Motion to Submit (Dkt. 50) are denied.
Motion to Strike and Motion to Submit (Dkt. 41, 50)
filed the Motion to Strike on December 27, 2017, requesting
the Court strike a statement submitted by non-party Jessyca
Swatman (Dkt. 40) filed on December 15, 2017. Dkt. 41.
Defendants move to strike the statement because Ms. Swatman
is not a party to this case, Ms. Swatman is not
Plaintiff's attorney, the statement is not sworn
testimony or accompanying a motion, and the statement's
contents are inadmissible. Id. Plaintiff filed a
response requesting the statement be considered. Dkt. 47. He
also filed a separate Motion to Submit, wherein he requests a
new sworn statement by Ms. Swatman, which is attached to the
Motion to Submit, be filed. Dkt. 50. Plaintiff asserts the
statement is necessary to prove the facts of his case.
See Dkt. 47, 50.
to Federal Rule of Civil Procedure 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” At this time there are no pending motions
which require the submission of evidence. For example,
neither party has filed a motion for summary judgment. The
Court also notes the December 15, 2017 statement is not sworn
testimony and, therefore, does not constitute evidence. As
the December 15, 2017 statement is not sworn testimony and as
there are no pending motions that require the submission of
evidence currently before the Court, Defendants' Motion
to Strike (Dkt. 41) is granted and Plaintiff's Motion to
Submit (Dkt. 50) is denied.
Clerk is directed to strike the December 15, 2017 statement
(Dkt. 40). If any motion (i.e. a motion for summary judgment)
is filed which requires the submission of evidence, Plaintiff
may file evidence (such as Ms. Swatman's sworn statement)
with his motion or his response to Defendants' motion.
Motion for Counsel (Dkt. 48)
January 2, 2018, Plaintiff filed his second Motion for
Counsel requesting Court-appointed counsel. Dkt.
No constitutional right to appointed counsel exists in a
§ 1983 action. Storseth v. Spellman, 654 F.2d
1349, 1353 (9th Cir. 1981); see United States v. $292,
888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.
1995) (“[a]ppointment of counsel under this section is
discretionary, not mandatory”). However, in
“exceptional circumstances, ” a district court
may appoint counsel for indigent civil litigants pursuant to
28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. §
1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th
Cir. 1997), overruled on other grounds, 154 F.3d 952
(9th Cir. 1998). To decide whether exceptional circumstances
exist, the Court must evaluate both “the likelihood of
success on the merits [and] the ability of the [plaintiff] to
articulate his claims pro se in light of the
complexity of the legal issues involved.” Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)). A plaintiff must plead facts showing he has an
insufficient grasp of his case or the legal issues involved
and an inadequate ability to articulate the factual basis of
his claims. Agyeman v. Corrections Corp. of America,
390 F.3d 1101, 1103 (9th Cir. 2004).
Plaintiff's Motion for Counsel, he states his family has
attempted to obtain an attorney with no success, he has
limited knowledge of the law and needs counsel to obtain
witness statements and conduct discovery and depositions, and
counsel will be able to better present Plaintiff's case
at trial. Dkt. 48.
time, Plaintiff has not shown, nor does the Court find, this
case involves complex facts or law. Plaintiff has also not
shown he is likely to succeed on the merits of his case or
shown an inability to articulate the factual basis of his
claims in a fashion understandable to the Court. For example,
Plaintiff clearly articulated his claims in his Complaint and
motion requesting injunctive relief. See Dkt. 8, 11.
Additionally, Plaintiff has filed multiple motions and
responses with the Court, indicating he is able to litigate
this case. The Court also notes “Plaintiff's
incarceration and limited access to legal materials are not
exceptional factors constituting exceptional circumstances
that warrant the appointment of counsel. Rather, they are the
type of difficulties encountered by many pro se
litigants.” Dancer v. Jeske, 2009 WL 1110432,
*1 (W.D. Wash. Apr. 24, 2009). Therefore, the Court finds
Plaintiff has failed to show the appointment of counsel is
appropriate at this time. Accordingly, Plaintiff's Motion
for Counsel (Dkt. 48) is denied without prejudice.
 The Court denied Plaintiff's first
request for counsel on September 26, ...