United States District Court, W.D. Washington, Tacoma
ORDER GRANTING EXTENSION OF TIME AND DENYING MOTION
TO APPOINT COUNSEL
Theresa L. Fricke United States Magistrate Judge
matter comes before the court on plaintiffs motion for
extension of time and appointment of counsel. Dkt. 15. The
court has carefully considered the arguments presented by the
parties and will GRANT plaintiffs unopposed motion for
extension of time and DENY plaintiffs motion for appointment
of counsel without prejudice.
Extension of Time
has argued for a 60-day extension of time to respond to the
court's latest order (Dkt. 14), in which this court
directed defendants to either waive personal service or show
cause as to why personal service should not be ordered and
defendants directed to pay the costs of service. Plaintiff
was not expected to respond to this order. Construing
plaintiffs meaning liberally, however, the court finds that
plaintiff intended to request an extension on the time
allotted for him to respond to defendants' pending motion
to dismiss (Dkt. 10).
have construed plaintiffs motion in the same way, and their
response to plaintiffs motion (Dkt. 18) indicates that
defendants do not oppose plaintiffs request.
claims that he has faced the same difficulty complained-of
previously, regarding his inability to locate and receive
legal documents that were removed from his possession during
transfer between prison facilities. Plaintiff claims
defendant Sinclair, defendant of the Department of
Corrections, has sequestered plaintiffs legal documents away
for the purpose of interfering with plaintiffs ability to
bring his claims to court. Without making any finding on the
conduct of the parties, and in light of defendants' lack
of opposition, the court finds that an extension is
appropriate to allow plaintiff sufficient time to contact the
third-parties (e.g., Disability Rights Washington) he has
engaged to assist him in his case and to form his complete
response to defendant's motion to dismiss.
Appointment of Counsel
court declines to appoint counsel for plaintiff. Plaintiff
may renew this motion if later in the proceedings,
exceptional circumstances would require appointment of
constitutional right exists to appointed counsel in a §
1983 action. Storseth v. Spellman, 654 F.2d 1349,
1353 (9th Cir. 1981); see also 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."). In "exceptional
circumstances," a district court may appoint counsel for
indigent civil litigants pursuant to 28 U.S.C. §
1915(e)(1)). Rand v. Roland, 113 F.3d 1520, 1525
(9th Cir. 1997), overruled on other grounds, 154
F.3d 952 (9th Cir. 1998).
decide whether exceptional circumstances exist, the Court
must evaluate both "the likelihood of success on the
merits [and] the ability of the petitioner 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 that show he has an
insufficient grasp of his case or the legal issue involved,
and an inadequate ability to articulate the factual basis of
his claim. Agyeman v. Corrections Corp. of America,
390 F.3d 1101, 1103 (9th Cir. 2004). That a pro se
litigant may be better served with the assistance of counsel
is not the test. Rand, 113 F.3d at 1525.
has pursued his claims in all the proceedings prior to this
motion pro se and has demonstrated an ability to
articulate himself in a clear fashion understandable to this
presents no evidence to show whether he is likely to succeed
on the merits of his case. While plaintiff may not have vast
resources or legal training, he meets the threshold for a
pro se litigant. Although plaintiff contends that
defendants would return his legal documents if he were
appointed counsel, this is a speculative argument, and
plaintiffs lack of access to older court documents is not
sufficient to require appointment of counsel. See Wood v.
Housewright,900 F.2d 1332, 1335 (9th Cir. 1990) (noting
that contended exceptional factors were "difficulties
which any litigant would have in proceeding pro se").
Plaintiff has not met his burden to ...