United States District Court, W.D. Washington, Tacoma
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff's: (1) “Motion to Request
the Appointment of Counsel” (“Motion to Appoint
Counsel”) (Dkt. 95) and (2) “Reply to Defendants
and Cross Motion to Sever on Plaintiff's Claims
Concerning Access to the Courts”. Dkt. 96. Although not
specifically characterized as such, the Court interprets
Plaintiff's Reply as a “Reply and a Motion to
Amend” as Plaintiff seeks to amend his complaint by
“severing” portions of his claims for denial of
access to the courts. The Clerk is also directed to note Docket
96 as a pending motion.
review of the Motions and relevant record, Plaintiff's
Motion to Appoint Counsel (Dkt. 95) is denied without
prejudice. The Court also denies Plaintiff's Motion to
Amend (Dkt. 96) without prejudice. Plaintiff may re-file a
motion to amend and proposed amended complaint on or before
September 27, 2019.
Motion to Appoint Counsel (Dkt. 95)
fourth time, Plaintiff requests appointment of counsel. Dkt.
95. See also Dkts. 14, 18, 19, 21, 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 he has a limited ability to present his case because
he needs testimony from other witnesses, proceeding pro
se presents a “massive handicap” in front of
a jury, his case presents complex legal issues, and he has
been transferred to different prison facilities which has
resulted in denial of access to his legal files and the
phone. Dkt. 95 at 25.
time, Plaintiff has not shown, nor does the Court find, this
case involves complex facts or law. Plaintiff has also not
shown an inability to articulate the factual basis of his
claims in a fashion understandable to the Court. For example,
Plaintiff has adequately articulated his claims in the
numerous motions and pleadings and responded to the motions
filed by Defendants. See e.g. Dkts. 65-95.
Plaintiff's filings include legal citations and analysis,
which demonstrate his ability to conduct extensive research
and analyze the applicable law. See Id. Plaintiff
has not shown he is likely to succeed on the merits of his
case. Further, “Plaintiff's incarceration and
limited access to legal materials are not exceptional factors
constituting exceptional circumstances that warrant the
appointment of counsel. Rather, they are the type of
difficulties encountered by many pro se litigants.”
Dancer v. Jeske, 2009 WL 1110432, *1 (W.D. Wash.
Apr. 24, 2009). Accordingly, Plaintiff's Motion to
Appoint Counsel (Dkt. 95) is denied without prejudice.
Motion to Amend (Dkt. 96)
moves for the Court to amend his access of courts claims.
Dkt. 96 at 1-2. Pursuant to Rule 15(a) of the Federal Rules
of Civil Procedure, (1) Amending as a Matter of
Course A party may amend its pleading once as a
matter of course within: (A) 21 days after serving it, or
the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
other cases, a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
filed an Answer on May 22, 2019. Dkt. 63. Thus, the time has
expired for filing an amendment as a matter of course and
Plaintiff cannot amend pursuant to Rule 15(a)(1).
Defendants have not provided written consent allowing
Plaintiff to amend. Thus, to amend the Complaint, Plaintiff
must have the ...