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Williams v. Sinclair

United States District Court, W.D. Washington, Tacoma

August 13, 2019

JAMES ANTHONY WILLIAMS, Plaintiff,
v.
STEPHEN SINCLAIR, Defendants.

          ORDER GRANTING EXTENSION OF TIME AND DENYING MOTION TO APPOINT COUNSEL

          Theresa L. Fricke United States Magistrate Judge

         This 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 of counsel.

         DISCUSSION

         I. Extension of Time

         Plaintiff 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.

         Plaintiff 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.

         II. Appointment of Counsel

         The court declines to appoint counsel for plaintiff. Plaintiff may renew this motion if, later in the proceedings, exceptional circumstances would require appointment of counsel.

         No 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).

         To 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.

         Plaintiff 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 Court.

         Plaintiff 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.

         CONCLUSION

         As 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 ...


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