Curbow v. Clintsman ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DONN E CURBOW, Case No. 2:21-cv-1420-TLF 7 Plaintiff, v. ORDER ON MOTION FOR 8 RECONSIDERATION DON CLINTSMAN, et al., 9 Defendants. 10 11 This matter comes before the Court on plaintiff’s motion for reconsideration. Dkt. 12 7. For the reasons set forth herein, plaintiff’s motion for reconsideration is DENIED. 13 FACTUAL AND PROCEDURAL BACKGROUND 14 Plaintiff is proceeding in this action pro se, alleging that the named defendants 15 have violated plaintiff’s rights. Dkt. 1. Plaintiff filed a motion for appointment of counsel 16 stating that plaintiff has made several unsuccessful attempts to obtain private counsel. 17 Dkt. 3. The Court denied plaintiff’s motion for appointment of counsel. Dkt. 4. In its 18 Order, the Court explained that plaintiff did not qualify for appointed counsel under 28 19 U.S.C. § 1915(e)(1) because plaintiff has not demonstrated that he is indigent under 28 20 U.S.C. § 1915(e)(1) and plaintiff is not proceeding in forma pauperis. Dkt. 4. 21 Additionally, the Court stated that even if plaintiff demonstrated that he was indigent for 22 purposes of 28 U.S.C. § 1915(e)(1), plaintiff has not shown exceptional circumstances 23 warranting appointment of counsel. Dkt. 4. 24 1 Plaintiff has filed a motion for reconsideration. Dkt. 7. Plaintiff’s motion for 2 reconsideration argues that exceptional circumstances exist warranting appointment of 3 counsel because plaintiff is “100% disabled through the U.S. Navy” and because 4 plaintiff suffers from agoraphobia. Dkt. 7 at 1-3. Additionally, plaintiff informs the Court 5 that every attorney that he has contacted in Washington has declined to represent 6 plaintiff. Dkt. 7 at 4. Further, plaintiff states that he has tested positive for COVID which 7 has caused increased anxiety. Dkt. 7 at 4. Finally, plaintiff argues that counsel should 8 be appointed because he lacks legal knowledge and training. Dkt. 7 at 5-6. 9 DISCUSSION 10 Motions for reconsideration are generally disfavored under the Court’s local 11 rules: 12 Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior 13 ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. 14 15 Local Rules W.D. Wash. CR 7(h)(1). Such motions are an “extraordinary remedy,” and 16 “should not be granted, absent highly unusual circumstances, unless the district court is 17 presented with newly discovered evidence, committed clear error, or if there is an 18 intervening change in the controlling law.” Kona Enters., Inc. v. Estate of Bishop, 229 19 F.3d 877, 890 (9th Cir. 2000) (internal citations omitted). 20 A plaintiff does not have a constitutional right to appointed counsel in civil rights 21 actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court “may 22 request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 23 1915(e)(1). The Court may only appoint counsel to a person that cannot afford counsel 24 1 in “exceptional circumstances.” Agyeman v. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2 2004). 3 Plaintiff’s motion for reconsideration argues that exceptional circumstances 4 warrant appointment of counsel because he is disabled, plaintiff has been unable to 5 retain private counsel, and because plaintiff lacks the legal knowledge necessary to 6 litigate this action. Dkt. 7. Plaintiff has not shown that he is unable to afford counsel in 7 this action. Plaintiff has paid the Court’s filing fee, did not move to proceed in forma 8 pauperis and has not provided any evidence that plaintiff is unable to afford an attorney. 9 The motion for reconsideration does not provide new or additional evidence regarding 10 plaintiff’s ability to afford an attorney. Therefore, plaintiff is not entitled to appointed 11 counsel under 28 U.S.C. § 1915(e)(1). 12 CONCLUSION 13 Based on the foregoing discussion, plaintiff’s motion for reconsideration (Dkt. 7) 14 is DENIED without prejudice. Plaintiff may bring another motion if, at a later time in the 15 proceeding plaintiff can demonstrate that he cannot afford to hire counsel and that 16 exceptional circumstances require appointment of counsel. 17 Dated this 25th day of January, 2022. 18 19 A 20 Theresa L. Fricke 21 United States Magistrate Judge 22 23 24