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ORDER DENYING MOTION 

TO APPOINT COUNSEL - PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JERRY A. BRENDEN,

Plaintiff,

v.

SELLEN CONSTRUCTION COMPANY,

INC.,

Defendant.

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Case No. C05-1681-RSL-JPD

ORDER DENYING MOTION

TO APPOINT COUNSEL

Plaintiff is proceeding pro se and in forma pauperis in this civil action against Sellen

Construction Company, Inc. Dkt. No. 12. This motion comes before the Court on plaintiff’s

first and second Motion for Appointment of Counsel. Dkt. Nos. 10, 19. Although plaintiff’s

motions are less than clear, he requests appointment of counsel to represent him because “all

the bugs are out and the trees are cut to see through the forest.” Having carefully reviewed

plaintiff’s motion and the record, the Court ORDERS as follows:

(1) Plaintiff’s Motions for Appointment of Counsel, Dkt. Nos. 10, 19, are

DENIED. 

Plaintiffs do not have a right to appointment of counsel in civil cases. However, under

28 U.S.C. § 1915(e)(1), the Court has the discretion to appoint counsel to represent a party

Case 2:05-cv-01681-RSL Document 29 Filed 01/24/06 Page 1 of 2
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ORDER DENYING MOTION 

TO APPOINT COUNSEL - PAGE - 2

proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1) (2005); Wilborn v. Escalderon, 789

F.2d 1328, 1331 (9th Cir. 1986). The Court will appoint counsel only on a showing of

“exceptional circumstances.” Wilborn, 789 F.2d at 1331; U.S. v. $292,888.04 in U.S.

Currency, 54 F.3d 565, 569 (9th Cir. 1995). “A finding of exceptional circumstances requires

an evaluation of both the likelihood of success on the merits and the ability of the petitioner to

articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn,

789 F.2d at 1331 (internal quotations and citations omitted). A plaintiff must show that his

inability to articulate his claims resulted from the complexity of the legal issues involved. Rand

v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Neither of these factors is dispositive;

rather both should be considered together. Wilborn, 789 F.2d at 1331. 

Plaintiff fails to demonstrate that there are exceptional circumstances, which warrant

the appointment of counsel at this time. Plaintiff has not made a showing that this action is

likely to succeed on the merits. Wilborn, 789 F.2d at 1331. Plaintiff’s claims are nearly

unintelligible and none of the other papers, including the Motion for Appointment of Counsel,

sheds any light on his claims. Because of the lack of clarity in plaintiff’s papers, the Court is

unable to conclude that he is likely to succeed on the merits. Because plaintiff has not

demonstrated a likelihood of success on the merits, the Court declines to order the

appointment of counsel at this time.

 (2) The Clerk is directed to send a copy of this Order to plaintiff, counsel for the

defendant, and to the Honorable Robert S. Lasnik, Chief Judge.

DATED this 24th day of January, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

Case 2:05-cv-01681-RSL Document 29 Filed 01/24/06 Page 2 of 2