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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KEITH L. NASH,

Plaintiff,

v.

DOUG WADDINGTON; et al.,

Defendants.

Case No. C06-5127-RJB

ORDER OVERRULING

OBJECTIONS AND

AFFIRMING ORDER OF

MAGISTRATE JUDGE

This matter comes before the court on plaintiff’s objections to an order of the magistrate judge. 

Dkt. 159. Defendants have not filed a response to the objections. The court has considered the pleadings

filed in support of the motion and the file herein.

I. BACKGROUND AND PROCEDURE

On April 10, 2006, plaintiff filed a civil rights complaint in this Court. Dkt. 9. During discovery,

on February 9, 2007, plaintiff filed a Motion to Compel. Dkt. 91. On March 28, 2007, U.S. Magistrate

Judge Karen L. Strombom issued an order denying plaintiff’s Motion to Compel. Dkt. 102. On April 9,

2007, plaintiff filed a Motion for Reconsideration of the order denying plaintiff’s Motion to Compel. Dkt.

107. On May 14, 2007, Judge Strombom issued an order denying the plaintiff’s Motion for

Reconsideration. Dkt. 116.

On April 13, 2007, plaintiff filed an Affidavit of Prejudice and Motion for Recusal of Judge

Strombom. Dkt. 110. On April 30, 2007, U.S. District Judge Robert S. Lasnik issued an order denying

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ORDER

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plaintiff’s Motion for Recusal. Dkt. 115. 

On June 11, 2007, this Court overruled the Plaintiffs' Objection to the Magistrate's Order Denying

Motion for Reconsideration and Dkt 102 (Dkt. 118), and this Court affirmed both the Order Denying

Plaintiff's Motion to Compel (Dkt. 102) and Order Denying Plaintiff's Motion for Reconsideration (Dkt.

116). Dkt. 123. On June 25, 2007, plaintiff filed a Notice of Appeal with the United States Court of

Appeals for the Ninth Circuit regarding that order. Dkt. 132. On July 30, 2007, the court of appeals

issued an order to dismiss plaintiff’s appeal. Dkt 159 at 8.

On June 4, 2007, plaintiff filed a Motion for the Appointment of Counsel. Dkt. 122. On July 30,

2007, U.S. Magistrate Judge Karen L. Strombom issued an order denying plaintiff’s motion. Dkt. 148. In

the order denying the motion, the court noted that the plaintiff demonstrated an adequate ability to

articulate his claims pro se, the issues plaintiff raised were not complex, and the plaintiff did not provide

any evidence of exceptional circumstances or a likelihood of success on the merits. Id. at 2. 

Plaintiff has now filed objections to the magistrates order. Dkt. 159. Plaintiff objects on two

grounds: 1) the magistrate judge overlooked evidence that plaintiff was inarticulate and evidence that

plaintiff has demonstrated exceptional circumstances, and 2) the magistrate judge lacked “vest power and

jurisdiction” to enter the order. Dkt. 159 at 3-4. 

II. DISCUSSION

Under Fed.R.Civ.P. 72(a), upon objection by a party to a pretrial order of a magistrate judge, the

district judge shall consider the objections and shall modify or set aside any portion of the magistrate

judge’s order found to be clearly erroneous or contrary to law.

First, plaintiff argues that he requires counsel because he is unable to articulate his claims pro se. 

Dkt. 159 at 3. Plaintiff offered as evidence of his inability a declaration by opposing counsel in which

opposing counsel states that plaintiff asked “very confusing, convoluted questions” during depositions. Id.

at 11. However, the magistrate judge found that plaintiff was able to adequately articulate his claims

because plaintiff not only had filed numerous motions in this case but also had engaged in extensive

discovery without the assistance of counsel. Dkt. 148 at 2. The decision of the magistrate judge is not

clearly erroneous or contrary to law. 

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ORDER

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Plaintiff also argues that in his Motion for Appointment of Counsel he “clearly identified specific

instances of ‘exceptional circumstances’” that “demonstrated the complexity of the legal issues involved

and the likelihood of success on the merits of this action.” Dkt. 159 at 4. However, plaintiff cites no

specific instance of exceptional circumstance, no complex issue, and no reason for likelihood of success on

the merits. Id. The decision of the magistrate judge is not clearly erroneous or contrary to law. Therefore,

plaintiff’s objections to the magistrate judge’s order should be overruled.

Second, plaintiff argues that the magistrate court lacked “vest power and jurisdiction” to enter the

order denying his motion. Dkt. 159 at 4. Because the plaintiff had an appeal under consideration by the 9th

Cir. when the magistrate judge entered the order denying plaintiff’s motion, plaintiff argues that the 9th Cir.

had complete jurisdiction over his claims until the court issued the order to dismiss the appeal. Id. As

authority for plaintiff’s argument, plaintiff cites 28 U.S.C. § 1291, Fed. R. Civ. P. 54(b), and Chacon v.

Babcoc, 640 F.2d 221 (9th Cir. 1981). Id. However, none of those authorities hold that a magistrate court

is without “vest power and jurisdiction” to rule on a Motion for Appointment of Counsel while an appeal

of non-dispositive orders is under consideration by a court of appeals. Therefore, the magistrate judge’s

order denying the Motion for Appointment of Counsel should be affirmed.

III. ORDER

 Therefore, it is hereby

ORDERED that plaintiff’s objections to the order of the magistrate judge are OVERRULED and

the Order Denying the Motion for Appointment of Counsel (Dkt. 148) is AFFIRMED. 

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any

party appearing pro se at said party’s last known address. 

DATED this 27th day of August, 2007.

AROBERT J. BRYAN

United States District Judge 

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