Fernandez-Medina v. Olivarez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 ROILAND FERNANDEZ-MEDINA, CASE NO. 3:20-cv-05703-RAJ-JRC 11 Plaintiff, ORDER 12 v. 13 OLIVAREZ, 14 Defendants.

16 Before the Court is plaintiff’s motion for appointment of counsel. Dkt. 9. Defendants did not file a response.

18 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. 6 Plaintiff alleges that he has attempted to contact attorneys by phone, but he is not able to afford counsel. Dkt. 6. Plaintiff further contends his imprisonment will greatly limit his ability to litigate this matter, he has limited access to the law library, he has limited formal education, and counsel would enable plaintiff to present evidence and examine witnesses. Dkt. 6 at 3.

10 Here, plaintiff has not shown that he is likely to succeed on the merits of his case or shown an inability to articulate his claims in a fashion that is understandable to the Court. His pleadings before the Court demonstrate that he is able to understand the legal standards applicable to his § 1983 claims and communicate the factual basis for those claims. See Dkt. 4, 5, 6, 7. In addition, this is not a complex case nor do plaintiff’s § 1983 claims entitle him to representation. See Storseth, 654 F.2d at 1353. “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.” Wilborn, 789 F.2d at 1331.

1 Thus, Court finds that plaintiff has not shown the exceptional circumstances required for the appointment of counsel. Plaintiff’s motion to appoint counsel (Dkt. 9) is therefore denied without prejudice.

5 Dated this 12th day of November, 2020.

A J.Richard Creatura United States Magistrate Judge