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Thibodeaux v. White

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Feb 17, 2021
CASE NO. 3:20-cv-05110-BHS-JRC (W.D. Wash. Feb. 17, 2021)

Opinion

CASE NO. 3:20-cv-05110-BHS-JRC

02-17-2021

LOUIS JAMES THIBODEAUX, Plaintiff, v. DANIEL WHITE, et al., Defendants.


ORDER DENYING MOTION TO APPOINT COUNSEL

This matter is before the Court on plaintiff's third motion for the appointment of counsel to represent him in this civil rights matter. See Dkt. 81. For the reasons discussed below, the Court denies plaintiff's motion.

BACKGROUND

Plaintiff, who is incarcerated, initiated this matter in February 2020. See Dkt. 1. The Court granted plaintiff permission to proceed in forma pauperis and served his complaint. See Dkts. 7, 12. The Court also denied plaintiff's first two motions for appointment of counsel without prejudice. Dkts. 31, 64.

The parties have filed cross-motions for summary judgment. See Dkts. 66, 67. The undersigned issued a report and recommendation on the parties' cross motions, including recommending that the cross-motions be denied regarding two of plaintiff's claims. Dkt. 86. Currently pending is plaintiff's third motion for appointment of counsel, which plaintiff filed after briefing on the cross-summary judgment motions was complete. See Dkt. 81.

DISCUSSION

Plaintiff requests the appointment of counsel on the basis that he tested positive for COVID-19 on or before January 6, 2021, and could not access the library; that he cannot afford an attorney; and that an attorney could obtain various records for plaintiff. See Dkt. 81, at 1-2.

There is no constitutional right to appointed counsel in a § 1983 civil action, and whether to appoint counsel is within this Court's discretion. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1) requires "exceptional circumstances." See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing former 28 U.S.C. § 1915(d) (1996)), overruled on other grounds, 154 F.3d 952 (1998). To decide whether exceptional circumstances exist, the Court must evaluate "both 'the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.'" Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). "Neither of these factors is dispositive and both must be viewed together[.]" Id.

Plaintiff has shown some likelihood of success on the merits for at least two of his claims. In the Report and Recommendation, the undersigned found genuine issues of material fact related to plaintiff's claims against a nurse and corrections officer under 42 U.S.C. § 1983. See Dkt. 86.

However, the analysis does not end, and the Court does not appoint counsel, simply because there is some likelihood of success on the merits. See Wilborn, 789 F.2d at 1331. The Court must also look to plaintiff's ability to articulate his claims in light of their complexity.

Plaintiff has aptly litigated his claims to date. He has explained why his three prior strikes did not prevent him from proceeding in forma pauperis. Dkt. 7, at 1. He has articulated a plausible theory of liability that resulted in the District Court granting plaintiff leave to amend his claim when considering a prior report and recommendation. See Dkt. 50, at 2. He has filed many motions, including citations to legal authority and cognizable arguments in support of his claims in this matter. And most recently, plaintiff has successfully argued that the Court should not recommend summary judgment dismissal of two of his claims. See Dkts. 66, 74. Plaintiff's remaining claims are not unusually complex, and he has shown that he is able to articulate those claims in light of their complexity.

Moreover, plaintiff's arguments in his motion to appoint counsel are unpersuasive. The Court is not convinced that plaintiff's positive COVID-19 diagnosis at some time more than a month ago merits the appointment of counsel now. Notably, less than a week after filing his most recent motion for appointment of counsel, plaintiff filed a sur-reply related to the cross-summary judgment motions (Dkt. 84), which included case citations and arguments directed toward defendants' briefing.

Plaintiff's financial circumstances alone are not exceptional circumstances justifying the appointment of counsel. Nor is his bare assertion that he needs counsel in order to obtain a video tape and unspecified "other documents." Dkt. 81, at 2. Appointment of counsel is not appropriate merely because an attorney would be more adept at managing discovery requests.

For all these reasons, the Court denies the motion to appoint counsel (Dkt. 81). This order is again without prejudice, in the event that circumstances may require the Court to consider a renewed motion in the future.

Dated this 17th day of February, 2021.

/s/_________

J. Richard Creatura

United States Magistrate Judge


Summaries of

Thibodeaux v. White

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Feb 17, 2021
CASE NO. 3:20-cv-05110-BHS-JRC (W.D. Wash. Feb. 17, 2021)
Case details for

Thibodeaux v. White

Case Details

Full title:LOUIS JAMES THIBODEAUX, Plaintiff, v. DANIEL WHITE, et al., Defendants.

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Date published: Feb 17, 2021

Citations

CASE NO. 3:20-cv-05110-BHS-JRC (W.D. Wash. Feb. 17, 2021)