United States District Court, W.D. Washington, Seattle
KYNTREL T. JACKSON, Plaintiff,
SHAWNA PATZKOWSKI, et al., Defendants.
ORDER ON MISCELLANEOUS MOTIONS
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE.
a 42 U.S.C. § 1983 prisoner civil rights action.
Plaintiff has filed the following motions, which are now ripe
for the Court's disposition: (1) motion to appoint
counsel (dkt. # 76); (2) “Motion for Physical and
Mental Examination” (dkt. # 76 at 41); (3)
“Motion to request telephonic conference for
Preliminary Injunctions, ” which Plaintiff filed under
seal (dkt. # 77); (4) “Motion for Protective
Order” (dkt. # 64); and (5) motion for extension of
time to file a reply in support of his motion for a
protective order (dkt. # 90). Defendants oppose the motion to
appoint counsel and motion for protective order, but they do
not oppose the motion for extension of time. (Dkt. ## 80, 86,
91.) As explained below, the Court denies the first three
motions, lifts the seal on the third motion, grants the
motion for extension of time, and re-notes the motion for
Motions for Appointment of Counsel and Physical and Mental
seeks the appointment of counsel because of his mental health
problems and his lack of familiarity with the courts and
legal procedures. (Dkt. # 76.) Plaintiff explains that he has
“Multi Personality Disorder, ” which causes him
to have periodic breakdowns. (Id. at 3-4.) He also
argues that he lacks legal knowledge, including how to
conduct discovery, and that his imprisonment will greatly
limit his ability to litigate. (Id. at 5-6.)
Plaintiff contends that he will need expert testimony to
prove his First Amendment claims and that appearing at trial
would trigger his mental instability. (Id. at 9-12.)
He further maintains that he has shown a likelihood of
success on the merits of his claims. (Id. at 13-14.)
Plaintiff also filed a motion asking the Court to order a
mental examination, pursuant to Federal Rule of Civil
Procedure 35, to support his request for appointment of
counsel. (Id. at 41.) Defendants oppose
Plaintiff's motion to appoint counsel, arguing that he
has not established a likelihood of success on the merits and
that his submissions in this case show that he is capable of
articulating his claims pro se. (Dkt. # 80.)
a person has no right to counsel in a civil action. See
Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). In
certain “exceptional circumstances, ” the Court
may request the voluntary assistance of counsel for indigent
civil litigants under 28 U.S.C. § 1915(e)(1).
Agyeman v. Corrections Corp. of Am., 390 F.3d 1101,
1103 (9th Cir. 2004). When determining whether
“exceptional circumstances” exist, the Court
considers “the likelihood of success on the merits as
well as the ability of the [plaintiff] to articulate his
claims pro se in light of the complexity of the legal issues
involved.” Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983). Neither factor is dispositive, and they must
be viewed together before reaching a decision on a request
for counsel. Id.
fails to demonstrate exceptional circumstances at this time.
Given the factual disputes between the parties, Plaintiff has
not shown a likelihood of success on the merits. In addition,
Plaintiff appears able to articulate his claims pro
se-as evidenced by his complaint and motion for
appointment of counsel-given that the legal issues are not
particularly complex. Moreover, despite Plaintiff's
mental health difficulties, he has been able to file motions
and may ask the Court for additional time to file and respond
to motions if his mental health issues prevent him from
meeting any deadlines. The Court thus finds that Plaintiff
fails to establish good cause for a Rule 35 mental
examination. See Fed. R. Civ. P. 35(a)(2) (court may
only order Rule 35 examination upon a showing of good cause).
remaining complaints relate to difficulties conducting
discovery, issues that are not unique to him. If such
difficulties were sufficient to establish “exceptional
circumstances, ” nearly every pro se prisoner
would be entitled to pro bono counsel. See Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(“Most actions require development of further facts
during litigation and a pro se litigant will seldom be in a
position to investigate easily the facts necessary to support
the case. If all that was required to establish successfully
the complexity of the relevant issues was a demonstration of
the need for development of further facts, practically all
cases would involve complex legal issues [warranting
appointment of counsel].”).
both the likelihood of Plaintiff's success on the merits
and his ability to articulate his claims pro se in
light of the complexity of the legal issues, the Court
concludes that Plaintiff has not established exceptional
circumstances warranting the appointment of counsel.
the Court denies his motion to appoint counsel (dkt. # 76)
and motion for a mental examination (id. at 41).
Motion for Telephonic Conference
asks the Court to hold a telephonic conference regarding his
motions for a Preliminary Injunction/Temporary Restraining
Order so that he can explain his request and answer any
questions from the judge. (Dkt. # 77.) At Plaintiff's
request, the Clerk filed Plaintiff's motion under seal.
Court construes Plaintiff's motion as a request for oral
argument. The Honorable Ricardo S. Martinez has already
denied Plaintiff's three motions seeking preliminary
injunctive relief. ...