Rogers v. Washington Department of Corrections ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF 5 WASHINGTON AT TACOMA 6 DARYL ROGERS, Case No. C21-5011 BJR-TLF 7 Plaintiff, v. ORDER GRANTING PLAINITFF’S 8 MOTION TO STAY FURTHER WASHINGTON DEPARTMENT OF PROCEEDING AND DENYING 9 CORRECTIONS, PLAINITFF’S MOTION FOR APPOINTMENT OF COUNSEL 10 Defendants. 11 This matter comes before the Court on plaintiff’s motion to stay (Dkt. 65) and 12 motion to appoint counsel (Dkt. 66). 13 A. Plaintiff’s Motion to Stay 14 Plaintiff requests that the Court grant his motion to stay his case for 90-120 days 15 in light of his recent transfer from Stafford Creek Corrections Center (SCCC) to Airway 16 Heights Corrections Center (AHCC). Dkt. 65 at 1. Plaintiff states that his property, 17 including his legal documents, may take up to 90 days to be transferred to his new 18 location. Id. 19 Defendants state that at the time of plaintiff’s transfer to AHCC, DOC transferred 20 three boxes of plaintiff’s possessions to his new facility at DOC’s expense in 21 accordance with DOC policy. Dkt. 67 at 2. Anything in excess of three boxes has to be 22 paid at plaintiff’s request and own expense, and defendants are not aware of plaintiff 23 arranging for the transport of his additional possessions, including his legal documents. 24 1 Defendants do not oppose a reasonable extension of the deadlines in the pretrial 2 scheduling order so that plaintiff can arrange for the transport of his legal materials. 3 The Court, having considered plaintiff’s motion and defendants’ response, the 4 Court GRANTS plaintiff’s motion and orders that proceedings regarding all parties in 5 this matter will be stayed for sixty days from the date of this Order. 6 Accordingly, the Court hereby establishes the following amended pretrial 7 schedule: 8 • Any dispositive motions shall be filed and served by March 10, 2023. 9 B. Plaintiff’s Motion to Appoint Counsel 10 This is plaintiff’s second motion for appointment of counsel. Plaintiff filed his first 11 such motion on May 7, 2021, which the Court denied. Dkts. 10-11. Having carefully 12 considered that motion and balance of the record, the Court finds plaintiff’s current 13 motion should be denied as well. 14 There is no constitutional right to have counsel appointed in a 42 U.S.C. § 1983 15 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also United 16 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 17 (“[a]ppointment of counsel under this section is discretionary, not mandatory.”). In 18 “exceptional circumstances,” a district court may appoint counsel for indigent civil 19 litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d 1520, 1525 (9th 20 Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis 21 supplied.) 22 To decide whether exceptional circumstances exist, the Court must evaluate both 23 “the likelihood of success on the merits [and] the ability of the petitioner to articulate his 24 1 claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 2 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 3 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient 4 grasp of his case or the legal issue involved, and an inadequate ability to articulate the 5 factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 6 1103 (9th Cir. 2004). That a pro se litigant may be better served with the assistance of 7 counsel is not the test. Rand, 113 F.3d at 1525. 8 Plaintiff requests appointment of counsel because of an inability to afford a 9 private attorney, because the issues in this case are complex, and because he has 10 limited knowledge of the law. Dkt. 66, p. 1-3. The inability to afford private counsel, 11 however, is not the type of exceptional circumstance that might warrant appointment of 12 counsel at government expense. Rather, it is the type of condition of confinement that 13 all inmates who file civil rights complaints in general face. See Wood v. Housewright, 14 900 F.2d 1332, 1335-36 (9th Cir. 1998). 15 The same is true in regard to plaintiff’s limited knowledge of the law, given that 16 plaintiff has not shown access these factors have prevented him from being able to 17 articulate the factual basis of his claims pro se. To the contrary, plaintiff’s filings indicate 18 quite the opposite. 19 It is premature to assess the likelihood of success or whether the issues in this 20 case are necessarily complex. After dispositive motions are filed on the issues in this 21 case, there will be additional clarity regarding whether any genuine dispute of material 22 fact is ready for trial. At that time plaintiff potentially may have another opportunity to 23 bring to the Court’s attention the issue of whether counsel should be appointed. 24 1 Accordingly, plaintiff’s motion for appointment of counsel (Dkt. 66) is DENIED. 2 C. Conclusion 3 Based on the foregoing, plaintiff’s motion to stay all proceedings for 60 days is 4 GRANTED. Any dispositive motion shall be filed and served by March 10, 2023. 5 Further, plaintiff’s motion for appointment of counsel is DENIED. The Clerk shall send a 6 copy of this Order to plaintiff and counsel for defendants. 7 8 Dated this 15th day of December, 2022. 9 10 11 A Theresa L. Fricke 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24