United States District Court, W.D. Washington, Seattle
JAMES D. GRIEPSMA, Plaintiff,
CHRISTIAN J. ANDERSON, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
Michelle L. Peterson United States Magistrate Judge.
matter comes before the Court on Plaintiff's second
motion for appointment of counsel. (Dkt. # 35.) Defendant
opposes Plaintiff's motion. (Dkt. # 36.) After careful
consideration of the motion, the governing law, and the
balance of the record, the Court finds that the complexity of
the legal issues present in this case and Plaintiff's
ability to articulate his claims do not constitute
exceptional circumstances to justify the appointment of
counsel. Plaintiff's motion for appointment of counsel
(dkt. # 35) therefore is DENIED.
constitutional right to counsel exists for an indigent
plaintiff in a civil case unless the plaintiff may lose his
physical liberty if he loses the litigation. See Lassiter
v. Dep't of Social Services, 452 U.S. 18,
25 (1981). Pursuant to 28 U.S.C. § 1915(e)(1), however,
this Court has the discretion to appoint counsel for indigent
litigants proceeding in forma pauperis. United
States v. $292, 888.04 in U.S. Currency, 54 F.3d 564,
569 (9th Cir. 1995). The Court may appoint counsel only on a
showing of “exceptional circumstances.”
Id.; Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986). “A finding of exceptional
circumstances requires an evaluation of 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, 789 F.2d at 1331. These factors must be
viewed together before reaching a decision on a request for
counsel under § 1915(e)(1). Id.
asserts appointment of counsel is necessary for two reasons.
First, Plaintiff argues that he is being denied access to his
legal materials. (Dkt. # 35 at 1.) Plaintiff previously
raised this issue in a motion for the Court to direct DOC to
deliver his legal paperwork, specifically two boxes of legal
material. (Dkt. # 30.) In that motion, Plaintiff stated that
he expected Washington State Penitentiary (“WSP”)
would fail to deliver his boxes of legal material when they
arrived at WSP. (Id. at 4.) The Court found
Plaintiff's motion premature and denied the motion. (Dkt.
now appears to argue that he is currently being denied access
to the two boxes of legal materials, rather than merely
expecting to be denied access. However, Defendants have
presented evidence that WSP staff met with Plaintiff on
October 28, 2019 to review every folder of legal mail that
Plaintiff owns. (Dkt. # 37 (“Gonzalez Decl.”) at
¶ 7.) Plaintiff was allowed to determine which legal
materials he wanted to keep in his cell, up to 25 pounds per
WSP policy, and the rest of the material was moved to a
property office. (Id.) Plaintiff can submit a kite
with a request to exchange the legal materials in his cell
with the stored materials in the property office.
(Id.) Thus, it appears Plaintiff has appropriate
access to his legal materials and therefore his alleged
access to legal materials fails to establish that exceptional
circumstances exist to appoint counsel.
Plaintiff asserts appointment of counsel is required for him
to receive equal protection under the Fourteenth Amendment.
(Dkt. # 35 at 2.) The Court similarly finds this reason
insufficient to establish exceptional circumstances
warranting appointment of counsel. As noted above, there is
no constitutional right to counsel for an indigent plaintiff
in a civil case, and Plaintiff has not shown that he may lose
his physical liberty if he loses this action. Further, the
Court finds Plaintiff's assertion that counsel is
required to “obtain and maintain physical control of
the discovery/evidence” unpersuasive. See Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(“Most actions require development of further facts
during litigation and a pro se litigant will seldom be in a
position to investigate easily the facts necessary to support
the case. If all that was required to establish successfully
the complexity of the relevant issues was a demonstration of
the need for development of further facts, practically all
cases would involve complex legal issues [warranting
appointment of counsel].”).
as the Court has found before, Plaintiff has made it clear
that he is fully capable of articulating his position.
(See Dkt. # 11 (Order denying Plaintiff's first
motion for appointment of counsel).) The claims in
Plaintiff's amended complaint (dkt. # 12) have been
presented in a manner demonstrating an adequate ability to
articulate his claims pro se. Plaintiff has also
filed, inter alia, a motion for extension of time to
file objections to the Court's Report and Recommendation
(dkt. # 16), objections to the Court's Report and
Recommendation (dkt. # 19), and a motion to direct DOC to
deliver Plaintiff's legal paperwork (dkt. # 30). The
Court also finds that at this stage in the litigation, with a
lack of evidence to support Plaintiff's claims, it is
unclear whether Plaintiff is likely to prevail on the merits.
Accordingly, the Court concludes that appointment of counsel
is not appropriate at this time.
reasons stated above, the Court Plaintiff's second motion
for appointment of counsel (dkt. # 35) is DENIED. Plaintiff
will be free to move for appointment of counsel, if
necessary, at a later date.
Clerk is directed to send a copy of this Order to plaintiff
and to the Honorable Ricardo S. Martinez.