Thibodeaux v. White

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 LOUIS JAMES THIBODEAUX, CASE NO. 3:20-cv-05110-BHS-JRC 11 Plaintiff, ORDER DENYING MOTION TO 12 v. APPOINT COUNSEL 13 DANIEL WHITE, et al., 14 Defendants.

16 This matter is before the Court on plaintiff’s second motion for the appointment of counsel to represent him in this civil rights matter. See Dkt. 51. For the reasons discussed below, the Court denies plaintiff’s motion.

19 BACKGROUND 20 Plaintiff, who is incarcerated, initiated this matter in February 2020. See Dkt. 1. The Court granted plaintiff permission to proceed in forma pauperis and served his complaint. See Dkts. 7, 12. The Court also denied plaintiff’s first motion for appointment of pro bono counsel, which plaintiff filed shortly after initiating the case. Dkt. 31. The denial was without prejudice.

1 The District Court subsequently granted a motion to dismiss filed by certain defendants, granting plaintiff leave to amend his claims. Dkt. 50. On September 29, 2020, plaintiff filed the pending motion for appointment of counsel, and on October 12, 2020, plaintiff filed his amended complaint. See Dkt. 58.

5 Defendants have filed their answer to the amended complaint. See Dkt. 60. Currently pending is plaintiff’s request to file an over-length summary judgment motion as well as his second motion for the appointment of counsel. See Dkt. 61. The deadline to file dispositive motions is January 6, 2021. Dkt. 27.

9 DISCUSSION 10 Plaintiff requests the appointment of private attorney Don Miller to represent him on the basis that plaintiff cannot afford counsel and that he cannot prosecute the case due to his incarceration and the complexity of the matter. See Dkt. 51, at 1–2.

13 There 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 together[.]” Id. 1 Regarding plaintiff’s ability to articulate his claims in light of their complexity, the Court notes that plaintiff’s claims are not overly complex. The operative complaint brings claims against three defendants, related primarily to alleged failure to provide medical care to plaintiff, who suffers from a heart condition. See Dkt. 58.

5 Moreover, plaintiff’s actions in this matter to date have shown that he can adequately articulate his claims. In response to a show-cause order, plaintiff explained why his three prior “strikes” did not prevent him from proceeding in forma pauperis. See Dkt. 7, at 1. And in his objections to a report and recommendation, plaintiff articulated a plausible theory of liability that resulted in the District Court granting plaintiff leave to amend his claim. See Dkt. 50, at 2.

10 Plaintiff has filed many motions, including citations to legal authority and cognizable arguments in support of his claims in this matter. In short, the Court does not find that plaintiff is unable to articulate his claims pro se in light of their complexity, contrary to plaintiff’s conclusory assertions that “since COVID-19” his ability to litigate this case has been impeded.

14 Regarding plaintiff’s likelihood of success on the merits, the matter is in its early stages.

15 The amended complaint has yet to survive any meaningful adversarial testing. Plaintiff’s claim that he could not litigate his case if it proceeded to trial is, at this stage, not a persuasive reason to appoint counsel.

18 Regarding plaintiff’s conclusory statement that he will “soon” be transferred to a facility without law library access, the Court notes that plaintiff acknowledges he will nevertheless be able to order legal materials. Defendants also assert that plaintiff will have the remedy of a temporary transfer to use another facility’s law library. See Dkt. 57. In light of the speculative nature of plaintiff’s claim that he will be transferred and the lack of evidence that such a transfer would prevent plaintiff from litigating his case, plaintiff has failed to show the extraordinary circumstances required to justify the appointment of pro bono counsel.

3 For all these reasons, the Court denies the motion to appoint counsel (Dkt. 51) without prejudice to plaintiff’s ability to renew the motion at a later date, upon an appropriate showing.

5 Dated this 4th day of November, 2020.

A J. Richard Creatura United States Magistrate Judge