Thomas v. Hopf

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE KENNETH THOMAS, JR., 9 Plaintiff, Case No. C19-1766-JCC-MLP 10 v. ORDER CORRECTIONS OFFICER HOPF, et al., 12 Defendants.

14 This is a 42 U.S.C. § 1983 prisoner civil rights action. On April 9, 2021, Plaintiff Kenneth Thomas Jr. (“Plaintiff”) filed a “Motion to Reconsider Appointment of Counsel and a Motion to Appoint an Independent Expert” and a “Motion for Defendants to Provide Discovery under XYZ Rule” as a single filing (“Plaintiff’s Motions”). (Dkt. # 62.) Plaintiff’s Motions requests: (1) that the Court reconsider appointing Plaintiff counsel in this matter; (2) that the Court appoint an independent expert based off Plaintiff’s neck, back, and knee issues; and (3) that Defendant Hopf be compelled to produce any disciplinary actions from supervisors, grievances against him, and/or any other major misconduct reports since his employment in 2015 under “Rule XYZ.”1 (Id. at 1.) Plaintiff’s Motions did not provide any substantive argument addressing his requests but noted that he has contacted over 30 attorneys and had “no luck” finding representation. (See id.) On April 23, 2021, Defendant filed a response requesting that the Court deny Plaintiff’s Motions. (Dkt. # 70.)

5 Under Local Rule 7(h)(1), motions for reconsideration are disfavored in this district. Such motions will be granted only upon a “showing of manifest error in the prior ruling” or “new facts or legal authority which could not have been brought to [the Court’s] attention earlier without reasonable diligence.” LCR 7(h)(1). The motion shall be filed within 14 days after the order to which it relates is filed and noted for consideration the day it is filed. LCR 7(h)(2).

10 On October 21, 2020, the Court denied Plaintiff’s initial motion for appointment of counsel because the complexity of the legal issues presented in this case, and Plaintiff’s ability to articulate his claims, did not constitute exceptional circumstances to justify appointment of counsel. (Dkt. # 41 at 10.) The Court noted that Plaintiff was free to move for appointment of counsel, if necessary, at a later date. (Id.) Here, Plaintiff failed to file his motion to reconsider within 14 days of the Court’s determination on his appointment of counsel. See LCR 7(h)(2).

16 Nevertheless, the Court continues to find that exceptional circumstances do not exist in this matter to justify appointment of counsel at this time. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“A finding of exceptional circumstances requires an evaluation of 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.”). As such, Plaintiff additionally fails to demonstrate “manifest error” or provide new facts or legal authority as required to grant Plaintiff’s motion for appointment of counsel under LCR 7(h)(1).

1 Plaintiff’s Motions fails to articulate or explain “Rule XYZ” or why he is seeking discovery from Defendant on that basis. (See dkt. # 62 at 2.)

1 Furthermore, Plaintiff’s request to appoint an independent expert based on his medical issues, and request for discovery from Defendant, both failed to submit any argument or reasons addressing either request. (See dkt. # 62.) 28 U.S.C. § 1915, “does not authorize federal courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants.”

5 Patton v. Loadholt, 445 F.Supp.3d 802, 803 (E.D. Cal. 2020) (citations and internal quotations omitted). The Court additionally notes Plaintiff’s discovery motion was filed after the renewed discovery deadline in this matter expired on April 5, 2021 (dkt. # 48) without a request for an extension, and Defendants have since submitted a motion for summary judgment (dkt. # 65).

9 Accordingly, Plaintiff’s Motions (dkt. # 62) are DENIED. The Clerk is directed to send copies of this Order to the parties and to Judge Coughenour.

12 Dated this 28th day of April, 2021.

A 14 MICHELLE L. PETERSON United States Magistrate Judge