Webb v. NaphCare Inc ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 11 DAVID Q. WEBB, CASE NO. 3:21-cv-05761-TL 12 Plaintiff, ORDER DENYING APPOINTMENT v. OF COUNSEL 13 NAPHCARE, INC., 14 Defendant.1 15 16 17 This matter comes before the Court on pro se Plaintiff David Q. Webb’s Motion to 18 Appoint Counsel (Dkt. No. 15). Plaintiff had originally filed this motion in late 2021. When the 19 Court adopted the Report and Recommendation in this case, it re-noted the Motion to Appoint 20 Counsel to July 22, 2022, to give Plaintiff ample opportunity to amend his complaint. See Dkt. 21 No. 19 at 4. Plaintiff amended his complaint as directed, and the amended complaint was filed on 22 23 24 1 The case caption has been updated to reflect dismissal of all but one defendant, NaphCare, Inc. 1 June 9, 2022. Dkt. No. 20. Having reviewed the amended complaint, the Motion to Appoint 2 Counsel, and the governing law, the Court DENIES the motion to appoint counsel. 3 I. DISCUSSION 4 While there is “no constitutional right to counsel in a civil case,” Adir Int’l, LLC v. Starr 5 Indem. & Liab. Co., 994 F.3d 1032, 1038–39 (9th Cir. 2021) (internal citation omitted), a “court 6 may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. 7 § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). A district court has discretion to appoint counsel 8 for indigent litigants “to commence, prosecute or defend a civil action,” U.S. v. McQuade, 579 9 F.2d 1180, 1181 (9th Cir. 1978), but the Ninth Circuit “has limited the exercise of that power to 10 exceptional circumstances.” Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). In 11 determining whether exceptional circumstances exist, the Court must evaluate both (1) the 12 likelihood of success on the merits and (2) the litigants’ ability to articulate their claims without 13 representation, in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 14 1015, 1017 (9th Cir. 1991). “Neither of these factors is dispositive and both must be viewed 15 together before reaching a decision.” Id. (internal citations omitted). Exceptional circumstances 16 may exist where the litigant has an insufficient grasp of the legal issues involved or is unable to 17 state the factual bases of the claims. See Agyeman v. Corr Corp. of Am., 390 F.3d 1101, 1103–04 18 (9th Cir. 2004) (requiring appointment of counsel where a case was unusually complex due to 19 case law as well as litigant’s personal circumstances), cert. denied 545 U.S. 1128; see also Tilei 20 v. McGuinness, 642 Fed.Appx. 719, 722 (9th Cir. 2016) (appointing counsel where, among other 21 reasons, litigant likely needed expert testimony to prevail on deliberate indifference claim). 22 Plaintiff Webb has been granted leave to file this case in forma pauperis, as Plaintiff did 23 not appear to have sufficient funds to pay the case filing fee. Dkt. No. 9 at 2. Plaintiff also notes 24 his unsuccessful efforts to obtain counsel, which included outreach to over two dozen 1 attorneys/firms, including several law school clinics. Dkt. No. 15 at 2. Plaintiff’s amended 2 complaint states a colorable deliberate indifference claim against Defendant NaphCare for failure 3 to provide timely dental care while Plaintiff Webb was being held in pre-trial detention in Kitsap 4 County, leading to a staph infection that caused significant pain and suffering. Dkt. No. 20 at 5 4–5. He seeks $1,325,000 in monetary damages from Defendant “and/or it’s Indemnification 6 Insurer.” Id. at 6. 7 The Court does not find exceptional circumstances at this time. Plaintiff Webb’s 8 persistent and detailed litigation of this matter demonstrates his ability to litigate his claim pro se 9 in light of the legal issues involved. Plaintiff has shown a fairly sophisticated grasp of legal 10 research and briefing, and at this early stage in the case, it does not appear that he needs 11 assistance of counsel to continue litigating this claim. Further, the reasons he requested counsel 12 to be appointed in the first place were based on (1) “the Extreme Complexity of Interwoven 13 Legal Entanglement, involving more than Two (2) Dozen Defendants;” (2) “most important[ly],” 14 that Plaintiff Webb cannot afford to serve so many defendants; (3) that Plaintiff Webb is 15 homeless and unemployed and taking a long time to screen his complaint would cause him 16 “irreparable” harm; and (4) that Plaintiff wanted to add McDonald’s Corporation and a franchise 17 owner as defendants. Dkt. No. 15 at 4–5. None of these reasons are currently applicable. The 18 case has been significantly narrowed, and only the claims against a single defendant remain at 19 issue. The McDonald’s defendants have been dismissed. In its Order adopting the Report and 20 Recommendation on his motion to proceed in forma pauperis and proposed complaint, the Court 21 informed Plaintiff he could file a new motion for service of summons by a U.S. Marshal upon 22 the filing of his fourth amended complaint. Dkt. No. 19 at 4. 23 In addition, throughout his briefing, Plaintiff has shown that he is capable of researching 24 case law, making arguments, and registering for electronic service via the Court’s electronic 1 filing system. Moreover, with the narrowing and now focused claims of his Fourth Amended 2 Complaint, it may be possible for Plaintiff to secure private counsel. 3 Accordingly, the Court finds that Plaintiff has not met his burden of establishing the 4 circumstances that warrant an appointment of counsel at this point in the litigation. As the case 5 moves forward, Plaintiff may renew his motion for appointment of counsel if appropriate. If the 6 Court later orders an evidentiary hearing, counsel may also be appointed if Plaintiff qualifies. 7 II. CONCLUSION 8 Plaintiff’s motion to appoint counsel (Dkt. No. 15) is DENIED without prejudice. 9 Dated this 16th day of June 2022. 10 A 11 Tana Lin United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24