United States District Court, W.D. Washington, Tacoma
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
the Court are several motions filed by plaintiff: (1) motion
for discovery based on actions of defendants', discovery
should be ripe (“motion for discovery”) (Dkt.
24); (2) motion for deposition/amended complaint (Dkt. 37);
(3) motion to appoint counsel (Dkt. 38); and (4) motion for
depositions (Dkt. 39). The Court denies plaintiff's
motions without prejudice. The Court also directs defendants
to file the last known addresses of defendants Gilbert and
Burgher under seal on or before July 18, 2019 so that the
Clerk may attempt service. Plaintiff is directed to provide
more specific information identifying defendant Corder under
seal on or before July 18, 2019 so that defendants may
identify defendant Corder and the Clerk may attempt service.
Motion for Discovery (Dkt. 24), Motion for Deposition/Amended
Complaint (Dkt. 37), Motion for Depositions (Dkt.
10, 2019, plaintiff filed a motion for discovery, stating
“the complaint is for continuing and ongoing
violations[, ]” “property for which relief is
sought is in Grays Harbor[, ]” and requesting the
“motion be granted and further investigation prosist
[sic] for current and ongoing violations[, ]”
“the complaint be granted, injuries should be
considered ‘permanent'[, ]” “a
favorable order[, ]” and compensation and costs. Dkt.
24 at 1-2. Plaintiff filed two nearly identical motions on
May 22, 2019, entitled “motion for deposition/amended
complaint” (Dkt. 37) and on May 30, 2019, entitled
“motion for depositions” (Dkt. 39).
responded, arguing that it is unclear what relief plaintiff
seeks, but to the extent plaintiff seeks to file an amended
complaint, he may amend his complaint as a matter of course
pursuant to Federal Rule of Civil Procedure 15(a). Dkts. 40,
41. Defendants also argue depositions do not require a
motion, so they object to any relief regarding depositions.
extent plaintiff seeks to amend his complaint,
plaintiff's motions do not contain any factual
allegations against any of the named defendants. See
Dkts. 24, 37, 39. Thus, the relief sought is not clear. If
plaintiff does intend to file an amended complaint, Federal
Rule of Civil Procedure 15(a) permits a party to amend his
complaint once as a matter of course within 21 days after
receiving a responsive pleading. Defendants have not yet
filed an answer to the current operative third amended
complaint (Dkt. 21). See Dkt. Therefore, plaintiff
does not need to seek an order from the Court requesting
permission to file an amended complaint at this time.
Accordingly, the Court denies plaintiff's motions (Dkts.
24, 37, 39) without prejudice. If plaintiff intends to file
an amended complaint, the amended complaint would serve as a
complete substitute for his existing complaint. The Clerk is
directed to send a form for a 42 U.S.C. § 1983 complaint
and plaintiff is urged to follow this format if he chooses to
file an amended complaint.
extent that plaintiff is attempting to serve discovery
through the Court, discovery requests should be served
directly on the parties, and “must not be filed until
they are used in the proceedings or the court orders
filing.” Local Rule 5(b). Here, the Court has not
ordered discovery requests be filed and plaintiff is not
required to file a motion requesting depositions. Moreover,
the Court does not enter scheduling orders or discovery
orders until an answer is filed. Thus, insofar as plaintiff
requests service or the production of any discovery, the
motions (Dkts. 24, 37, 39) are denied as premature and
Motion to Appoint Counsel (Dkt. 38)
30, 2019, plaintiff filed a motion to appoint counsel. Dkt.
39. Defendants filed a response on June 7, 2019. Dkt. 41.
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
plaintiff's assertion that he needs counsel, plaintiff
has not demonstrated that exceptional circumstances exist in
this case. Because the case is still in its early stages, the
Court cannot yet determine plaintiff's likelihood of
success on the merits. However, at this time, plaintiff has
not shown, nor does the Court find, that this case involves
complex facts or law. Plaintiff's third amended complaint
focuses on an incident where plaintiff alleges that he
received inadequate medical treatment when he fell off his
bed in his cell and allegations related to access to the
courts. Dkt. 21. Though these issues can be complex, they are
not yet so complex as to be beyond plaintiff's ability to
litigate. In addition, plaintiff has not shown an inability
to articulate the factual basis of his claims in a fashion
understandable to the Court. For example, plaintiff followed
the Court's instructions in its orders to show cause and
clearly articulated his claims in his third amended
complaint. Dkts. 8, 15, 20, 21, 23. Therefore, the Court
finds that plaintiff has not shown the exceptional
circumstances required for the appointment of counsel.
Therefore, the Court denies plaintiff's motion to appoint
counsel (Dkt. 39) without prejudice.
Waivers of Service
April 18, 2019 the Court directed service of plaintiff's
third amended complaint. Dkt. 23. Waivers of service were due
May 28, 2019. See docket entry dated April 18, 2019.
To date, defendants Gilbert, Corder, and Burgher have not
returned waivers of service. See Dkt. Defense
counsel has not appeared on behalf of defendants Gilbert,
Corder, or Burgher. See Dkt. On June 17, 2019,
defense counsel filed a notice stating counsel is unable to
determine the identify of defendant Corder, and defendants
Gilbert and Burgher are no longer employees of the Department
of Corrections. Dkt. 43. Defense counsel provided that the
Washington State Attorney General's Office is unable to
waive service on behalf of defendants Corder, Gilbert, and
court has no jurisdiction over defendants Gilbert, Corder,
and Burgher until they have been properly served under
Fed.R.Civ.P. 4. Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.
1988). Under Rule 4(c)(2), the Court may order that personal
service be made by a United States marshal. However, in this
district, the marshals ...