United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO APPOINT COUNSEL
Richard Creatura, United States Magistrate Judge.
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B)
and local Magistrate Judge Rules MJR1, MJR3, and MJR4. This
matter is before the Court on plaintiff's motion to
appoint counsel. See Dkt. 41. Because plaintiff has
not yet shown the exceptional circumstances justifying the
appointment of counsel, the Court denies his motion.
who proceeds pro se and in forma pauperis
(Dkt. 8), brought this matter under 42 U.S.C. § 1983
against the State of Washington and individuals who worked
for the Washington Corrections Center Shelton Reception
Medical Providers team. See Dkt. 9, at 2-5. He
alleges that because defendants failed to house him out of
the general population, he suffered from panic attacks and
other symptoms of post-traumatic stress disorder
(“PTSD”) and that defendants' actions
violated Title II of the Americans with Disabilities Act (the
“ADA”) and the Rehabilitation Act (the
“RA”) and constituted cruel and unusual
punishment and medical malpractice. See Dkt. 9.
plaintiff's claims against all defendants other than
defendant Sundstrom, the District Court dismissed without
prejudice the claims for declaratory and injunctive relief,
claims under the ADA and RA, claims under the Eighth
Amendment for cruel and unusual punishment, and claims under
state medical malpractice law. See Dkt. 40, at 2.
The surviving claims following the order on the motion to
dismiss are plaintiff's claim against defendant Tiffany
DeMark in her individual capacity for cruel and unusual
punishment in violation of the Eighth Amendment (see
Dkt. 37, at 13) and his claims against defendants Tilahun
Abraha, Nathaniel Burt, Norisa dela Cruz, and DeMark in their
individual capacities for medical malpractice. See
Dkt. 37, at 19-20. The undersigned has also recommended that
summary judgment on all of plaintiff's claims against
defendant Sundstrom be granted and that these claims be
dismissed with prejudice. See Dkt. 48.
has requested that this Court appoint counsel to represent
him, and defendants oppose his request. See Dkts.
41, 42, 45, 47.
requests counsel on the basis that he lacks legal training
and that he suffers from severe PTSD “that manifests in
public settings[.]” Dkt. 41, at 2.
is no constitutional right to appointed counsel in a §
1983 civil action, and whether to appoint counsel is within
this Court's discretion. 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). Appointment of counsel for indigent civil
litigants under 28 U.S.C. § 1915(e)(1) requires
“exceptional circumstances.” See Rand v.
Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing
former 28 U.S.C. § 1915(d) (1996)), overruled on
other grounds, 154 F.3d 952 (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)). “Neither
of these factors is dispositive and both must be viewed
the likelihood of success on the merits, the undersigned has
recommended that plaintiff's claims against defendant
Sundstrom be dismissed with prejudice. The District Court has
also dismissed without prejudice the majority of
plaintiff's claims against the other defendants. Although
at this time, the District Court's order leaves pending a
few of plaintiff's claims-the claims against defendant
DeMark for cruel and unusual punishment and against
defendants Abraha, Burt, Cruz, and DeMark for medical
malpractice-these claims are still potentially subject to
disposition on summary judgment. See Dkt. 28
(setting the dispositive motions deadline for September
2019). Thus, the Court does not find, at this point, that
plaintiff has established a likelihood of success on the
merits. Cf. McCarthy v. Weinberg, 753 F.2d 836, 839
(10th Cir. 1985) (appointing counsel where plaintiff's
claim had survived summary judgment).
plaintiff's ability to litigate his claims, the Court
notes that his claims of medical malpractice and cruel and
unusual punishment are not yet so complex as to be beyond
plaintiff's ability to litigate. Moreover, plaintiff has
consistently been able to articulate the factual basis for
his claims and to litigate his case, including obtaining this
Court's leave to proceed in forma pauperis and
various extensions to deadlines. See Dkts. 24, 29,
38. Although plaintiff argues that his lack of legal training
merits the appointment of counsel, this circumstance is
common to most plaintiffs requesting the appointment of
counsel and is not an “exceptional circumstance.”
See Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th
the Court persuaded at this point that counsel should be
appointed on the basis of plaintiff's allegation that his
PTSD renders him unable to function in any environment
involving a social aspect-such as participating in a trial.
See Dkt. 47, at 2. Plaintiff does not allege that he
is unable to conduct discovery or otherwise participate at
this early stage; indeed, he acknowledges that he has been
able to function in the “qu[iet] safety of [his] own
room, ” including writing his various motions.
See Dkt. 47, at 2. The Court notes that the denial
of plaintiff's motion for the ...