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Jackson v. Patzkowski

United States District Court, W.D. Washington, Seattle

April 16, 2019

KYNTREL T. JACKSON, Plaintiff,
v.
SHAWNA PATZKOWSKI, et al., Defendants.

          ORDER ON MISCELLANEOUS MOTIONS

          MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This is 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 protective order.

         II. DISCUSSION

         A. Motions for Appointment of Counsel and Physical and Mental Examinations

         Plaintiff 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.)

         Generally, 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.

         Plaintiff 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).

         Plaintiff's 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].”).

         Considering 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.

         Accordingly, the Court denies his motion to appoint counsel (dkt. # 76) and motion for a mental examination (id. at 41).

         B. Motion for Telephonic Conference

         Plaintiff 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. (See id.)

         The 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. ...


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