United States District Court, W.D. Washington, Tacoma
W. Christel United States Magistrate Judge
the Court are three motions filed by Plaintiff: (1)
“Motion to Request the Appointment of Counsel”
(“Motion to Appoint Counsel”) (Dkt. 25); (2)
“Motion to Enter Additional Supporting Evidence re
Amended Complaint” (“Motion to Supplement”)
(Dkt. 28); and (3) “Motion Seeking Court to Appoint
Expert Witness” (“Motion to Appoint Expert
Witness”) (Dkt. 28).
review of the Motions and relevant record, Plaintiff's
Motion to Appoint Counsel (Dkt. 25) and Motion to Appoint
Expert Witness (Dkt. 29) are denied without prejudice. The
Court grants Plaintiff's Motion to Supplement (Dkt. 28)
and Plaintiff may file a proposed second amended complaint on
or before September 3, 2019.
Motion to Appoint Counsel (Dkt. 25)
requests appointment of counsel. Dkt. 25. No. constitutional
right to appointed counsel exists in a § 1983 action.
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)
(“[a]ppointment of counsel under this section is
discretionary, not mandatory”). However, in
“exceptional circumstances, ” a district court
may appoint counsel for indigent civil litigants pursuant to
28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. §
1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th
Cir. 1997), overruled on other grounds, 154 F.3d 952
(9th Cir. 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)). A plaintiff must plead facts showing he has an
insufficient grasp of his case or the legal issues involved
and an inadequate ability to articulate the factual basis of
his claims. Agyeman v. Corrections Corp. of America,
390 F.3d 1101, 1103 (9th Cir. 2004).
contends Defendants have been uncooperative, and he has been
transferred several times which has limited access to his
records. Dkt. 25 at 1-2. Plaintiff alleges he lacks
resources, knowledge, and “other tools to mount a
successful argument in trial or even in negotiations.”
Dkt. 25 at 10. This case does not involve complex facts or
law, and Plaintiff has not shown an inability to articulate
the factual basis of his claims in a fashion understandable
to the Court. As the Court has screened and declined to serve
Plaintiff's Original Complaint, Plaintiff has also not
shown he is likely to succeed on the merits of his case.
Accordingly, Plaintiff's Motion to Appoint Counsel (Dkt.
25) is denied without prejudice.
Motion to Supplement (Dkt. 28)
seeks permission to file a supplement to his Amended
Complaint. Dkt. 28. Plaintiff states he needs to add evidence
to his Amended Complaint which he recently obtained. Dkt. 28
at 2. Plaintiff also appears to include additional factual
allegations in his Motion to Supplement. See Dkt.
28. Plaintiff has not attached a proposed second amended
complaint. See Dkt.
the Court previously screened Plaintiff's Original
Complaint and directed Plaintiff to file an Amended Complaint
by August 1, 2019. Dkts. 17, 23, 24. Plaintiff filed his
Amended Complaint on July 22, 2019. Dkt. 27. Three days
later, on July 25, 2019, Plaintiff moved for the Court to
allow him to supplement the Amended Complaint. Dkt. 28.
Because Defendants have not yet been served with
Plaintiff's Amended Complaint, and because the Court has
already provided Plaintiff leave to amend, Plaintiff's
Motion to Supplement (Dkt. 28) is granted. Plaintiff may file
a proposed second amended complaint on or before September 3,
proposed second amended complaint must be legibly rewritten
or retyped in its entirety, it should be an original and not
a copy, it should contain the same case number, and it may
not incorporate any part of the Amended Complaint (Dkt. 27)
by reference. The proposed second amended complaint will act
as a complete substitute for the Amended Complaint, and not
as a supplement. See Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992). The Court will screen the
proposed second amended complaint to determine if Plaintiff
has sufficiently stated a claim for relief under 42 U.S.C.
§ 1983. See 28 U.S.C. § 1915A(a).
Plaintiff fails to file a proposed second amended complaint
on or before September 3, 2019, this case will proceed on the
Amended Complaint (Dkt. 27).
Motion to Appoint Expert Witness (Dkt. 29)
requests the Court appoint his treating orthopedic surgeon to
support his claims that Defendants acted with deliberate
indifference, failed to make reasonable accommodations, and
failed to provide him with access to handicapped showers and
a wheelchair. Dkt. 29 at 1-2. Plaintiff argues the expert
testimony will assist the Court or jury in
“understanding the issue.” Dkt. 29 at 6. In the
alternative, Plaintiff argues “the prison officials
[should] pay the entire cost of the expert as [he] is
indigent” or Plaintiff pay the costs of his expert
witness and counsel from any relief. Dkt. 29 at 6.
Rule of Evidence 706 allows the court to appoint a neutral
expert. Students of Cal. Sch. For the Blind v.
Honig,736 F.2d 538, 549 (9th Cir. 1984), vacated on
other grounds,471 U.S. 148 (1985). The determination to
appoint an expert rests solely in the court's discretion
and the complexity of the matters to be determined and the
need for neutral expert review. See Leford v.
Sullivan,105 F.3d 354, 358-59 (9th Cir. 1997).
“Appointment [of expert witnesses] may be appropriate
when ‘scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or decide a fact in issue....' ” Levi
v. Director of Corrections, 2006 WL 845733 (E.D. Cal.
March 31, 2006) (citing Ledford v. Sullivan, 105
F.3d 354, 358-59 (7th Cir. 1997). However,