United States District Court, W.D. Washington, Tacoma
JOSHUA J. TRUEBLOOD, Plaintiff,
OFFICER SGT. CAPPOLA, et al., Defendants.
ORDER DENYING MOTIONS TO APPOINT COUNSEL AND TO SERVE
PROCESS OF SUMMONS AND COMPLAINT
Richard Creatura United States Magistrate Judge.
matter is before the Court on plaintiff's motion to
appoint counsel (Dkt. 14) and “to serve process of
summons and complaint.” Dkt. 18. Plaintiff's motion
to appoint counsel is denied without prejudice, meaning that
plaintiff may renew it at a later date if plaintiff can show
the exceptional circumstances necessary to justify the
appointment of counsel. Plaintiff's motion “to
serve process of summons and complaint” is denied as
defendants have been sent the complaint and have each waived
service of summons.
who proceeds pro se and in forma pauperis
(see Dkt. 5), brought this matter under 42 U.S.C.
§ 1983 in September 2019. See Dkt. 1. He
alleges deliberate indifference by three corrections
officers, which plaintiff believes resulted in him
contracting a disease during his incarceration. See
Court directed service of plaintiff's amended complaint
on the three named defendants (see Dkt. 3), each of
whom have now returned waivers of service of summons.
See Dkts. 22-24. An attorney has also appeared and
is representing the three defendants. See Dkt. 21.
TO APPOINT COUNSEL
requests that this Court appoint counsel to represent him.
See Dkt. 14.
is no constitutional right to appointed counsel in a §
1983 civil action, and whether to appoint counsel is within
this Court's discretion. 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). Appointment of counsel for indigent civil
litigants under 28 U.S.C. § 1915(e)(1) requires
“exceptional circumstances.” See Rand v.
Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing
former 28 U.S.C. § 1915(d) (1996)), overruled on
other grounds, 154 F.3d 952 (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)). “Neither
of these factors is dispositive and both must be viewed
plaintiff has not raised novel or particularly complex
issues-rather, his complaint raises fairly straightforward
issues involving whether corrections officers were
deliberately indifferent to his safety in violation of the
Eighth Amendment. See Dkt. 9. Moreover, at this
early stage in the proceedings, when defendants have yet to
file any answer or motion, the Court cannot say that there is
a likelihood of success on the merits.
asserts that he has little knowledge of the law as a basis to
grant counsel. Dkt. 14, at 1. However, circumstances that are
common to pro se plaintiffs-such as lack of legal
training-do not amount to the exceptional circumstances
necessary to appoint counsel. Wood v. Housewright,
900 F.2d 1332, 1335-36 (9th Cir. 1990).
also notes that he is diagnosed with post-traumatic stress
disorder and that he is unable to contact his witnesses as
reasons to appoint counsel. See Dkt. 14, at 1. While
the Court is cognizant of the difficulties presented by
plaintiff's condition and incarceration, so far,
plaintiff has been able to adequately litigate his case and
present his claims, including amending his complaint in
response to the Court's show cause order. See
Dkt. 7. Moreover plaintiff has not explained or presented
information regarding why he is unable to contact witnesses
or how the difficulties that he cites have hampered him from
presenting his case so far. Nor has plaintiff explained why
the options in the Federal Rule of Civil Procedure-which
permit a party to seek discovery of non-privileged matters
relevant to his case and proportional to his case's
needs-are inadequate. See Fed. R. Civ. P. 26(b)(1);
see also Fed. R. Civ. P. 30 (regarding depositions
by oral examination), 31 (depositions by written questions),
33, (interrogatories), and 34 (requests for production of
documents). Therefore, the Court finds that plaintiff's
concerns do not at this time amount to the exceptional
circumstances necessary to justify the appointment of pro
also states that his institution does not have a law library.
See Dkt. 14, at 1. A plaintiff's statement that
he lacks law library access, standing alone, will not
automatically result in the appointment of counsel. See,
e.g., Williams v. Waddington, C07-5216 RBL-KLS,
2007 WL 2471674, at *1 (W.D. Wash. Aug. 29, 2007) (finding
that plaintiff had not shown that the legal issues in his
case were complex or that he was unable to articulate his
claims pro se, even though he could not access a law
library); Moore v. Philips, 10-cv-3273, 2010 WL
5067823, at *2 (C.D. Ill.Dec. 7, 2010) (the fact that there
was no law library access did not merit the appointment of
counsel at an early stage in the litigation); Long v.
Doe, 08-cv-478-SLC, 2008 WL 4950080, at *2 (W.D. Wisc.
Nov. 18, 2008) (although lack of access to a law library
would make prosecution of his case more difficult, under the
circumstances, it would not prevent plaintiff from litigating
his case). Some districts have noted additional
circumstances, beyond the mere lack of law library access,
that could merit granting such a request. See Alvarez v.
Kristo, cv-08-2226-PHX-DGC, 2009 WL 539676, at *1 (D.
Ariz. March 4, 2009) (in addition to no law library access,
petitioner presented a novel and significant issue and there
were no other available forms of legal assistance); see
also Covarrubias v. Gower, C-13-4611 (EMC), 2014 WL
342548, at *1 (N.D. Cal. Jan. 28, 2014) (noting that there
was no indication of a lack of other options, such as a legal
paging system or ability to transfer to an institution with a
law library). Here, however, plaintiff does not demonstrate
that lack of access to a law library has prevented him from
litigating his case.
these reasons, the Court finds that plaintiff has not shown
the exceptional circumstances required for the appointment of
counsel. Because the denial of plaintiff's motion to
appoint counsel is without prejudice, plaintiff may renew his
motion at a later time, if he is able to establish the
exceptional circumstances warranting appointment of counsel.