United States District Court, W.D. Washington, Seattle
ORDER RE: PLAINTIFF'S PENDING MOTIONS
P. DONOHUE, UNITED STATES MAGISTRATE JUDGE
a civil rights action brought under 42 U.S.C. § 1983.
This matter comes before the Court at the present time for
consideration of ten motions recently filed by plaintiff. The
pending motions include the following: (1) motion to dismiss
the waiver of service of summons of defendant Derek Jensen
(Dkt. 35 at 1-3); (2) motion to dismiss the notice of
appearance for defendant Derek Jensen (id. at 4-7);
(3) motion to have a “judge trial” (id.
at 8); (4) motion to access the law library at the Washington
Corrections Center (id. at 9); (5) motion to strike
documents containing the name Derek Jensen and to amend
documents in the record to reflect the defendant's true
name, Sergeant Jellen (id. at 10-19); (6) motion re:
enforcement of the Fourteenth Amendment (id. at
20-23), (7) motions for court-appointed counsel (Dkts. 36,
42); (8) motion for discovery (Dkt. 37); and, (9) motion
regarding exhibits (Dkt. 41). The Court having reviewed these
motions, and the balance of the record, hereby Orders as
Plaintiff's motions pertaining to defendant Derek Jensen
(Dkt. 35 at 1-3, 4-7, and 10-19) are DENIED. Plaintiff
complains in this series of motions that the attorney
representing defendants in this action has improperly
referenced a defendant named “Derek Jensen” in
recent submissions when the defendant's actual name is
Sergeant Jellen. Plaintiff seeks to strike documents
referencing the improper defendant and to correct the record
to reflect the proper name of the defendant.
in his amended civil rights complaint, identified “Sgt.
Jensen” as a defendant. (See Dkt. 7.) The
Court ordered service on a Sergeant Jensen at the King County
Jail, and defendants' counsel thereafter returned a
waiver of service of summons and entered a notice of
appearance on behalf of an individual named Derek Jensen.
(See Dkts. 24, 33, 34.) Plaintiff now claims that
the correct name of the defendant is “Sgt.
Jellen” and he accuses counsel of having made up the
name Derek Jensen. Whether or not Derek Jensen is the
intended defendant in this action, plaintiff clearly
identified Sergeant Jensen and not Sergeant Jellen as the
defendant in his amended complaint. Counsel cannot be faulted
for plaintiff's apparent misidentification of the
defendant in his pleading. If plaintiff wishes to correct the
record, he may file a motion to amend his complaint together
with a proposed second amended complaint identifying the
proper defendant. The record will continue to reflect the
defendant originally identified by plaintiff until plaintiff
takes appropriate steps to correct the record.
Plaintiff's motion to have a “judge trial”
(Dkt. 35 at 8) is DENIED. The Court presumes that plaintiff
is intending to request a bench trial in this matter as
opposed to a jury trial. However, defendants have included a
jury demand in their answer to plaintiff's amended
complaint as is their right. See Fed. R. Civ. P. 38.
Assuming this case proceeds to trial, this matter will be
tried to a jury unless defendants later waive that right.
Plaintiff's motion for access to the law library at the
Washington Corrections Center (Dkt. 35 at 9) is DENIED.
Plaintiff, by way of the instant motion, appears to seek an
order granting him emergency law library access that will
allow him to meet court imposed deadlines. The Washington
Corrections Center is not a defendant to this action and this
Court therefore has no jurisdiction to direct the actions of
the facility or its employees. The Court notes as well that
there are no deadlines currently pending in this matter.
While the Court will be issuing a pretrial scheduling order
in conjunction with this Order, none of the deadlines set
forth therein should require emergency library access.
Plaintiff's motion re: enforcement of the Fourteenth
Amendment (Dkt. 35 at 20-23) is STRICKEN. The Court has
carefully read plaintiff's motion but is unable discern
what, if any, relief plaintiff is actually seeking by way of
this motion. Plaintiff's motion is therefore deficient
and will not be addressed further. See Fed. R. Civ.
Plaintiff's motions for court-appointed counsel (Dkts.
36, 42) are DENIED. There is no right to have counsel
appointed in cases brought under 42 U.S.C. § 1983.
Although the Court, under 28 U.S.C. § 1915(e)(1), can
request counsel to represent a party proceeding in forma
pauperis, the Court may do so only in exceptional
circumstances. Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d
1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616
F.2d 1089 (9th Cir. 1980). A finding of exceptional
circumstances requires an evaluation of 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, 789 F.2d at
has neither demonstrated a likelihood of success on the
merits nor shown that, in light of the complexity of the
legal issues involved, he is unable to articulate his claims
pro se. Thus, plaintiff has not demonstrated that this case
involves exceptional circumstances which warrant appointment
Plaintiffs motion for discovery (Dkt. 37) is STRICKEN. As
plaintiff was previously advised (see Dkt. 25),
discovery requests must be directed to defendants and not to
the Court. Plaintiff is once again instructed to familiarize
himself with the discovery rules as set forth in Rules 26-37
of the Federal Rules of Civil Procedure before proceeding
with further discovery.
Plaintiffs motion regarding exhibits (Dkt. 41) is STRICKEN as
it does not identify what, if any, relief is being sought as
is required under Fed.R.Civ.P. 7(b)(1).
Clerk shall send copies of this Order to plaintiff, to
counsel for defendants, and to the ...