Countryman v. Sherman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JUSTIN COUNTRYMAN, 9 Plaintiff, Case No. C19-01767-JCC-SKV 10 v. ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND DAVID SHERMAN, et al., GRANTING MOTION FOR EXTENSION OF DISPOSITIVE 12 Defendant. MOTIONS DEADLINE 14 This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the Court at the present time on Plaintiff’s motion for appointment of counsel, Dkt. 58, and Defendants’ motion for extension of the dispositive motion deadline, Dkt. 62. Defendants have filed a response opposing Plaintiff’s motion for appointment of counsel. Dkt. 60. For the reasons below, Plaintiff’s motion for appointment of counsel, Dkt. 58, is DENIED and Defendants’ motion for extension, Dkt. 62, is GRANTED.

20 // 21 Plaintiff’s Motion for Appointment of Counsel 22 There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983.

23 Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party ORDER DENYING MOTION FOR proceeding in forma pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). 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. Wilborn, 789 F.2d at 1331.

7 Plaintiff filed a previous motion seeking appointment of counsel which was denied.

8 Dkts. 22, 25. The Court notes that the instant motion raises many of the same arguments that were raised in Plaintiff’s previous motion. Plaintiff asserts in support of his motion for appointment of counsel that he cannot afford to pay for an attorney, that the issues in the case are complex, that he has limited knowledge of the law, and that he previously had assistance from other prisoners in litigating his case but that those individuals have been transferred to other facilities. Dkt. 58. Plaintiff also claims that access to the law library has been limited as a result of the pandemic and that his requests for “priority access” based on pending Court deadlines have been denied. Id. Finally, Plaintiff asserts that he is likely to succeed on the merits of his constitutional claims. Id. 17 Plaintiff asserts generally that his access to the law library has been limited due to the pandemic and that he has been denied priority access to the law library. Id. But Plaintiff offers no details regarding the basis for the denial of his requests for priority access or the nature and extent of the limitations on his law library access. Plaintiff also fails to demonstrate the limitations on law library access have impeded his ability to litigate his case to date. Plaintiff’s generalized assertions regarding limited law library access are insufficient to establish exceptional circumstances. The Court notes that in the event Plaintiff believes in good faith he

ORDER DENYING MOTION FOR will be unable to meet a deadline due to limited law library access or any other factor, he has the option of requesting an extension of time from the Court.

3 Plaintiff’s inability to pay for an attorney also does not, on its own, constitute an exceptional circumstance sufficient to warrant appointment of counsel. To the extent Plaintiff claims he lacks the ability to litigate this action in light of its complexity, as the Court has previously noted, this action is not, in fact, particularly complex as Plaintiff’s claims focus on a single issue; i.e., the Passover meal sign-up process, and the actions of Defendants in relation to that process. The legal and factual issues appear to be straightforward and do not justify appointment of counsel.

10 Finally, Plaintiff asserts generally that his case has merit. However, at this point, the Court has before it only Plaintiff’s amended complaint, Defendants’ answer thereto, and now Plaintiff’s motion to file a second amended complaint. The allegations in Plaintiff’s pleadings are not sufficient for the Court to draw any conclusions regarding his likelihood of success on the merits of his claims. Based on the information available to the Court at this juncture, the Court must conclude that Plaintiff has not demonstrated that his case involves exceptional circumstances which warrant the appointment of counsel. Accordingly, Plaintiff’s motion for appointment of counsel, Dkt. 58, is DENIED.

18 Defendants’ Motion for Extension of Dispositive Motions Deadline 19 Defendants move for an extension of the deadline for filing dispositive motions in light of Plaintiff’s pending motion to amend the complaint. Defendants’ motion, Dkt. 62, is GRANTED.

21 The dispositive motions deadline is extended to December 31, 2021.1 11 The Court notes that Plaintiff’s motion to amend, Dkt. 56, will be decided by separate order. In the event Plaintiff’s motion to amend is granted, the Court will issue an amended pretrial scheduling order which may further adjust the dispositive motions deadline.

ORDER DENYING MOTION FOR 1 The Clerk is directed to send copies of this order to the parties and to the Honorable John C. Coughenour.

3 Dated this 18th day of October, 2021.

A S. KATE VAUGHAN 7 United States Magistrate Judge ORDER DENYING MOTION FOR