United States District Court, W.D. Washington, Tacoma
ORDER DENYING WITHOUT PREJUDICE MOTION TO APPOINT
Richard Creatura United States Magistrate Judge.
District Court has referred this 42 U.S.C. § 1983 action
to United States Magistrate Judge J. Richard Creatura. This
matter is before the Court on plaintiff's fourth motion
for the appointment of counsel. See Dkt. 76.
alleges that his vision impairment prevents him from
litigating his case, but plaintiff has adequately litigated
this matter so far and has not demonstrated a likelihood of
success on the merits. Therefore, having carefully considered
plaintiff's arguments and the balance of the record, the
Court finds that plaintiff has not established the
exceptional circumstances justifying the appointment of
counsel at this time.
who is incarcerated and proceeds in forma pauperis,
brings this matter under 42 U.S.C. § 1983. See
Dkts. 7, 8. Plaintiff has requested the appointment of
counsel three times in this matter. The Court denied
plaintiff's first motion on the basis that plaintiff
could articulate his claims adequately and that it was
extremely early in the case, as defendants had not yet been
served, so that plaintiff could not establish a likelihood of
success on the merits. See Dkt. 16, at 2. The Court
denied plaintiff's second motion, which he filed after
the Court directed service of his complaint, for largely the
same reasons and also noting that plaintiff's difficulty
reading normal-sized font did not demonstrate the
extraordinary circumstances necessary to justify appointing
counsel. See Dkt. 30, at 2-3.
Court denied plaintiff's third motion, filed after
defendants requested partial judgment on the pleadings, for
many of the same reasons noted in the first two rulings.
See Dkt. 45, at 3. In addition, the Court noted that
plaintiff had filed numerous, well-supported motions despite
being housed at an institution where he alleged that he was
unable to access the law library and that plaintiff was
unable to show that the matter was complex enough that he
required counsel to articulate his case. See Dkt.
45, at 4.
Court granted defendants' motion for partial judgment on
the pleadings regarding plaintiff's claims for
discrimination under the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act (“RA”)
on the basis of his vision impairment, as well as
plaintiff's claim for a substantive due process
violation. See Dkt. 46, at 13. However,
plaintiff's ADA and RA claims arising from his hearing
impairment survived defendants' motion, as well as his
Eighth Amendment claims, which defendants did not move to
have dismissed. See Dkt. 46.
now move for summary judgment dismissal of plaintiff's
remaining claims. See Dkt. 49, at 23. Plaintiff has
not yet filed his response and brings the pending motion for
appointment of counsel. See Dkt. 76.
argues that he has established the exceptional circumstances
for the appointment of counsel based on his legal blindness
rendering him unable to read and write small print and
because some of his claims have survived the motion for
partial judgment on the pleadings. See Dkt. 76, at
2. Defendants oppose the request on the basis that
plaintiff's visual impairment alone is inadequate to show
exceptional circumstances, that he has adequately been able
to articulate his claims and prosecute his case, and that he
may receive legal assistance at his place of incarceration.
See Dkt. 79, at 2-3.
proceeding under § 1983 have no constitutional right to
appointed counsel. See United States v. $292, 888.04 in
U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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)). See Id. To decide whether
exceptional circumstances exist, the Court must evaluate both
“the likelihood of success on the merits and
[plaintiff's] ability to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Id. (quoting Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
“Neither of these considerations is dispositive and
instead [both] must be viewed together.” Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
the likelihood of success on the merits, plaintiff argues
that the case has proceeded to a later stage (see
Dkt. 76, at 1) and that he has prevailed against
defendants' partial motion for judgment on the pleadings.
See Dkt. 76, at 3. However, as the Court has
previously ruled, that some of plaintiff's claims survive
the motion for partial judgment on the pleadings does not
weigh in favor of a likelihood of success on the merits.
See Dkt. 45, at 3. Most of plaintiff's claims
were either not challenged or were dismissed. That defendants
have filed a summary judgment motion does not mean that the
case has now proceeded to a stage where a likelihood of
success on the merits is apparent.
plaintiff's ability to articulate his claims,
plaintiff's primary argument is that his legal blindness
impairs his ability to litigate his case. See Dkt.
76, at 1. Plaintiff states that he “cannot read and
write small print.” Dkt. 76, at 1. Throughout this
litigation, plaintiff has represented that his vision is
severely impaired. See Dkt. 9-1, at 2 (stating that
“it is extremely if not impossible [sic] for me at
times to read & write print”); Dkt. 19, at 5
(stating that plaintiff is severely impaired visually and is
at times “unable to completely read documents”);
Dkt. 36, at 2 (stating that plaintiff's condition
“makes it difficult for plaintiff to read normal-sized
font”). Nonetheless, as the Court has previously
observed, plaintiff has been able to capably litigate his
case, including, recently, obtaining subpoena forms from the
Court, obtaining several extensions to respond to the summary
judgment motion, and filing multiple coherent motions,
including legal argument and citations to relevant authority.
See, e.g., Dkts. 64, 78, 83, 84.
asserts that (1) it is against DOC policy for him to
compensate other inmates for legal work, hindering him from
obtaining other inmates' assistance in preparing motions
and pleadings (see Dkt. 80, at 1), (2) inmate law
clerks are not allowed to assist him (Dkt. 80, at 2), and (3)
the ADA coordinator and contract attorneys will not assist
him as he is suing their employer, DOC. Dkt. 80, at 2-4.
Nevertheless, despite these limitations-which appear to have
existed throughout the litigation-plaintiff has consistently
been able to articulate and ...