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. 17.
Defendants filed a response to the motion on August 5, 2019,
indicating no opposition to the motion for extension of time.
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
Extension of Time
requests an extension of time to respond to defendants'
pending motion for summary judgment (Dkt. 13). Dkt. 17.
Defendants do not oppose plaintiff s request. Dkt. 18.
claims that he previously submitted a motion for extension of
time in the two weeks following defendants' filing of the
motion for summary judgment, but having received no response
from the court, plaintiff "can only assume that the
prison staff [at his facility] did not mail [his]
motion." Dkt. 17 at 2. Plaintiff also claims that prison
staff routinely dispose of his legal documents in the trash.
Id. Plaintiff argues that without his "original
complaint" or his previously recorded legal research, he
cannot properly respond to the motion for summary judgment.
Id. Without making any finding on the conduct of the
parties, and in light of defendants' lack of opposition,
the court finds that a 60-day extension is appropriate to
allow plaintiff to form his complete response to
defendant's motion for summary judgment.
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. Spell man, 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. Escaideron,
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 only 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 demonstrate an inability
to present his claims to this Court without counsel or to
show that exceptional circumstances require the Court to
appoint counsel at this stage.
plaintiff has not shown appointment of counsel is appropriate
at this time, the motion for the appointment of counsel (Dkt.
17) is DENIED without prejudice. His motion for extension of
time is GRANTED. Plaintiff shall have until October
11th, 2019, to respond to the motion for summary
judgment. Defendant shall have until October 18th,
2019, to ...