Vance v. Smith ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 JOSHUA LEROY VANCE, 9 CASE NO. 2:22-CV-320-BJR-DWC Plaintiff, 10 ORDER DENYING MOTION FOR v. COURT-APPOINTED COUNSEL 11 ROBIN J. SMITH, KENNETH SAWYER, 12 Defendants. 13 14 The District Court referred this 42 U.S.C. § 1983 action to United States Magistrate 15 Judge David W. Christel. On May 24, 2022, Plaintiff Joshua Leroy Vance filed an Application 16 for Court-Appointed Counsel (“Motion”) and supporting statement. Dkt. 12, 13. 17 No constitutional right to appointed counsel exists in a § 1983 action. Storseth v. 18 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. 19 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is 20 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may 21 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 22 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), overruled on other 23 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the 24 1 Court must evaluate both “the likelihood of success on the merits [and] the ability of the 2 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” 3 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 4 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp 5 of his case or the legal issues involved and an inadequate ability to articulate the factual basis of 6 his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 7 In the Motion, Plaintiff states he has contacted eleven attorneys, but has been unable to 8 find an attorney who will represent him. Dkt. 12. Plaintiff also provides evidence that he is 9 unable to afford an attorney. Id. In his supporting statement, Plaintiff states he is mentally ill and 10 this case is too complex for him to proceed pro se. Dkt. 13. 11 At this time, Plaintiff has not shown, nor does the Court find, this case involves complex 12 facts or law. Plaintiff has also not shown he is likely to succeed on the merits of his case or 13 shown an inability to articulate the factual basis of his claims in a fashion understandable to the 14 Court. For example, after the Court instructed him to cure deficiencies in his Complaint, Plaintiff 15 clearly articulated his claims in his Amended Complaint. See Dkt. 4-6. While Plaintiff may be 16 able to better litigate this case with appointed counsel, that fact, alone, does not establish an 17 extraordinary circumstance warranting the appointment of counsel. See Rand, 113 F.3d at 1525; 18 Wilborn, 789 F.2d at 1331.Therefore, the Court finds Plaintiff has failed to show the appointment 19 of counsel is appropriate at this time. Accordingly, Plaintiff’s Motion (Dkt. 12) is denied without 20 prejudice. 21 Dated this 28th day of June, 2022. 22 A 23 David W. Christel United States Magistrate Judge 24