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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DARREL W. VANDERGRIFF,

Plaintiff,

v.

LYNNE DELANO, et al.,

Defendants.

CASE NO. C06-5062BHS

ORDER DENYING MOTION

FOR APPOINTMENT OF

COUNSEL AND DENYING

WITHOUT PREJUDICE

PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT

This matter comes before the Court on Plaintiff’s Motion for Summary Judgment (Dkt.

124) and Plaintiff’s Motion for Appointment of Counsel (Dkt. 125). The Court has considered

the pleadings filed in support of and in opposition to the motions and hereby denies the motions

for the reasons stated herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s amended civil rights complaint alleges that Defendants violated his civil rights

by withholding and tampering with his legal materials, refusing to make copies, removing him

from a computer class and from his position as a recreation attendant, threatening him with

infractions for “non-infractionable” acts, assaulting him, and transferring him to a different

facility. Dkt. 19. 

On April 6, 2007, Defendants moved for summary judgment seeking dismissal of

Plaintiff’s claims. Dkt. 99. The motion was granted in part and denied in part. Dkt. 106.

Plaintiff’s claims, with the exception of his excessive force claim against three defendants, were

dismissed with prejudice. Dkt. 106. Plaintiff’s excessive force claim was dismissed without

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ORDER - 2

prejudice as to Defendants Barnes and Bernard for failure to effect service. As to Defendant

Foulkes, the motion was denied. Id. Defendant Barnes has appeared by counsel and waived

formal service of process. Dkt. 119. Therefore, there remains one claim (excessive force) against

two defendants (Barnes and Foulkes) for resolution. 

Two motions are currently pending before the Court. First, Plaintiff moves for an order

appointing counsel to represent him. Dkt. 125. Second, Plaintiff moves for summary judgment as

to Defendant Barnes. Dkt. 124.

II. DISCUSSION

A. APPOINTMENT OF COUNSEL

There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983.

Although the court, under 28 U.S.C. § 1915(e), can request counsel to represent a party

proceeding in forma pauperis, the Court may do so only in exceptional circumstances. Rand v.

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). A finding of exceptional circumstances requires

an evaluation of 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).

Plaintiff fails to demonstrate exceptional circumstances that warrant appointment of

counsel. Plaintiff has demonstrated an adequate ability to articulate his claims pro se. The

remaining legal issues are narrow and are not complex. Plaintiff asserts no difficulty in

articulating his claims other than that attendant to his detention. In addition, Plaintiff does not

demonstrate a likelihood of success on the merits. The Motion for Appointment of Counsel (Dkt.

125) is therefore denied.

B. SUMMARY JUDGMENT

Summary judgment is proper only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the

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ORDER - 3

nonmoving party fails to make a sufficient showing on an essential element of a claim in the case

on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could

not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific,

significant probative evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P.

56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence

supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions

of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v.

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court

must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec.

Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of

the nonmoving party only when the facts specifically attested by that party contradict facts

specifically attested by the moving party. The nonmoving party may not merely state that it will

discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra).

Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be

presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

Plaintiff seeks summary judgment as to his excessive force claim against Defendant

Barnes. Dkt. 124. Defendant Barnes opposes Plaintiff’s motion on three grounds. See Dkt. 127.

First, Defendant Barnes opposes the motion on the grounds that the motion is not

accompanied by supporting documentation. Dkt. 127 at 2. Mr. Vandergriff need not file

affidavits in support of his motion, however. See Fed. R. Civ. P. 56(a) (“A party seeking to

recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may . . .

move with or without supporting affidavits for a summary judgment in the party’s favor upon all

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ORDER - 4

or any part thereof.”). Moreover, as detailed in the Report and Recommendation (Dkt. 102), Mr.

Vandergriff’s previously-filed declaration signed under penalty of perjury is sufficient to create a

genuine issue of material fact as to whether Defendant Barnes used excessive force. Dkt. 100-2

(Plaintiff’s declaration); Dkt. 102 at 3 (Report and Recommendation detailing factual dispute). 

Second, Defendant Barnes contends that her answer creates a genuine issue of material

fact for trial. Dkt. 127 at 2. The answer is not signed by Defendant Barnes, and the response is

not accompanied by a declaration or affidavit. 

Finally, Defendant Barnes contends that Plaintiff cannot waive discovery on her behalf.

Dkt. 127 at 2-3. Defendant Barnes has only recently been made a party to this action and

apparently wishes to engage in discovery. In light of this matter’s procedural posture with

respect to Defendant Barnes, summary judgment would be premature.

III. ORDER

Therefore, it is hereby

ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. 124) is DENIED

WITHOUT PREJUDICE and Plaintiff’s Motion for Appointment of Counsel (Dkt. 125) is

DENIED.

DATED this 30th day of November, 2007.

A 

BENJAMIN H. SETTLE

United States District Judge

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