United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR APPOINTMENT COUNSEL
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.
Currently pending in this action is plaintiff's third
motion for appointment of counsel (Dkt. 61) and motion to
transfer jurisdiction (Dkt. 64).
Third Motion to Appoint Counsel (Dkt. 61)
seeks the appointment of counsel for a third time in this
case. Dkt. 61. Although indigent defendants in criminal cases
are entitled to appointed counsel, there is no constitutional
right to appointed counsel in a § 1983 civil 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).
Court previously denied plaintiff's first and second
motions for appointment of counsel because he failed to show
any exceptional circumstances. Dkts. 33, 36, 54, 58. In
plaintiff's third motion, he again states his
imprisonment greatly limits his ability to litigate this
case, and because his case has survived screening, there is a
likelihood of success of the merits. Dkt. 61.
plaintiff's third motion does not present the Court with
any reason to change its prior conclusion that no exceptional
circumstances exist which warrant the appointment of counsel
in this case. While it may be true that the issues in this
case will require significant research and investigation,
that does not justify the appointment of counsel. See
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986) (“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.”). Plaintiff's renewed request also fails
to demonstrate that he is likely to succeed on the merits of
his case. Plaintiff has demonstrated an ability to articulate
the factual basis of his claims in a fashion understandable
to the Court. For example, plaintiff clearly articulated his
claims in his amended complaint and various motions filed
with the Court. See Dkts. 19, 20, 22, 33, 35, 37,
54, 61, 64. Moreover, as the Court previously stated,
“[p]laintiff'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.” Dkt. 36 at 5
(citing Dancer v. Jeske, 2009 WL 1110432, *1 (W.D.
Wash. Apr. 24, 2009)).
the Court finds that plaintiff has failed to show that the
appointment of counsel is appropriate at this time.
Accordingly, plaintiff's third motion to appoint counsel
(Dkt. 61) is denied without prejudice.
Motion to Transfer Jurisdiction (Dkt. 64)
moves for the Court to transfer this matter to the District
of Oregon. Dkt. 64. Defendants filed a response, arguing that
the District of Oregon is not the proper venue for this
matter. Dkt. 65.
jurisdiction is not founded solely on diversity, venue is
proper in (1) the district in which any defendant resides, if
all of the defendants reside in the same state; (2) the
district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial
part of the property that is the subject of the action is
situated; or (3) a judicial district in which any defendant
may be found, if there is no district in which the action may
otherwise be brought. See 28 U.S.C. § 1391(b).
When venue is improper, the district court has the discretion
to either dismiss the case or transfer it “in the
interest of justice.” See 28 U.S.C. §
it is clear from plaintiff's complaint that his claims
arise out of actions occurring in the state of Washington at
Washington Corrections Center and Airway Heights Corrections
Center, and against several Washington State Department of
Corrections employees. Dkt. 19. There are no allegations that
any of the named defendants reside in Oregon or that any of
the events giving rise to plaintiff's claims occurred in
Oregon. See Dkt. 19. Therefore, the District of
Oregon is not an ...