Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Palmer v. State

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

August 29, 2019

Michael Palmer, Plaintiff,
v.
State of Washington et al., Defendants.

          ORDER

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         Before 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.[1] The Clerk is also directed to note Docket 96 as a pending motion.

         After 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.

         A. Motion to Appoint Counsel (Dkt. 95)

         For the 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).

         Plaintiff 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.

         At this 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.

         B. Motion to Amend (Dkt. 96)

         Plaintiff 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

         (B) if 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.

         (2) Other Amendments

         In all 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 requires.

         Defendants 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).

         Further, Defendants have not provided written consent allowing Plaintiff to amend. Thus, to amend the Complaint, Plaintiff must have the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.