Stanard v. Dy ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 ROBERT A. STANARD, 9 Plaintiff, Case No. C19-1400-RSM-MLP 10 v. ORDER DENYING PLAINTIFF’S 11 DR. MARIA DY, et al., SECOND MOTION FOR APPOINTMENT COUNSEL 12 Defendants. 13 14 This is a civil rights action brought under Bivens v. Six Unknown Federal Narcotics 15 Agents, 403 U.S. 388 (1971). This matter comes before the Court at the present time on 16 Plaintiff’s second motion for appointment of counsel. (Dkt. # 28.) Plaintiff’s previous motion for 17 appointment of counsel was denied in November 2020. (See Dkt. ## 25, 26.) Plaintiff filed the 18 instant motion approximately a month later, asserting that COVID-19 restrictions at his 19 institution, FCI Sheridan, have hindered his ability to prosecute this case because they have 20 limited his law library access. (See Dkt. # 28 at 1, 4.) Plaintiff also asserts that, in addition to the 21 COVID-19 restrictions, appointment of counsel is warranted because of the complexity of his 22 case, which will require substantial discovery, investigation, and access to expert and inmate 23 ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL - 1 1 witnesses, and because his claims are legally plausible and he is likely to succeed at trial. (Id. at 2 3.) 3 As Plaintiff was previously advised, there is no right to have counsel appointed in cases 4 brought under Bivens. Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to 5 represent a party proceeding in forma pauperis, the Court may do so only in exceptional 6 circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 7 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding 8 of exceptional circumstances requires an evaluation of both the likelihood of success on the 9 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of 10 the legal issues involved. Wilborn, 789 F.2d at 1331. 11 To the extent Plaintiff claims that COVID-19 restrictions have hindered his ability to 12 litigate this case, the Court observes that Plaintiff recently filed a lengthy brief in response to 13 Defendants’ pending motion to dismiss which effectively undermines this claim. The Court also 14 observes that Plaintiff has demonstrated ample ability to articulate his claims and legal 15 arguments without the assistance of counsel, and that the legal issues involved in this case do not 16 appear to be particularly complex, despite Plaintiff’s assertions to the contrary. 17 With respect to Plaintiff’s assertions that counsel will be necessary to investigate his 18 claims, identify witnesses, and conduct discovery, he has identified challenges that are typical of 19 those faced by pro se litigants in general and by prisoners litigating actions from within the 20 confines of a correctional facility. As the Court explained in ruling on Plaintiff’s previous 21 request for counsel, these types of challenges do not, by themselves, constitute extraordinary 22 circumstances. Finally, with respect to Plaintiff’s assertion that he is likely to succeed on the 23 ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL - 2 1 merits of his claims, the pending motion to dismiss, which is now fully briefed, calls that 2 assertion into question. In sum, Plaintiff has not demonstrated that his case involves exceptional 3 circumstances which warrant the appointment of counsel. 4 Based on the foregoing, this Court hereby ORDERS as follows: 5 (1) Plaintiff’s second motion for appointment of counsel (dkt. # 28) is DENIED. 6 (2) The Clerk is directed to send copies of this Order to Plaintiff and to the Honorable 7 Ricardo S. Martinez. 8 DATED this 28th day of January, 2021. 9 A 10 MICHELLE L. PETERSON 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL - 3