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ORDER DENYING PLAINTIFF’S MOTIONS TO

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL A. BURNHART,

Plaintiff,

v.

REED HOLTGEERTS, et al.,

Defendants.

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CASE NO. C06-0870-JLR-MAT

ORDER DENYING PLAINTIFF’S

MOTIONS TO CONSOLIDATE AND

TO APPOINT COUNSEL

This is a civil rights action brought under 42 U.S.C. § 1983. Currently pending before the

Court are plaintiff’s motion to consolidate and to dismiss one defendant, and plaintiff’s motion for

appointment of counsel. The Court, having considered plaintiff’s pending motions, and the

balance of the record, does hereby find and ORDER as follows:

(1) Plaintiff’s motion to consolidate (Dkt. No. 17) is DENIED. Plaintiff seeks to

consolidate the instant action with Case No. C06-361 and Case No. C06-816. Plaintiff contends

that the three actions are interdependent and that they involve similar facts and evidence. A

review of plaintiff’s various complaints reveals that one involves plaintiff’s medical needs (Case

No. C06-361, Dkt. No. 6 at 3), the other involves a challenge under the federal Wiretap Act to

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ORDER DENYING PLAINTIFF’S MOTIONS TO

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the monitoring of plaintiff’s telephone calls by the Regional Justice Center (Case No. C06-816,

Dkt. No. 22), and the instant complaint involves plaintiff’s placement in administrative segregation

(Dkt. No. 6 at 3). While it appears that there might some slight overlap in facts, the cases are not

sufficiently similar to justify consolidation. Accordingly, this Court concludes that the cases

should remain separate.

(2) Plaintiff also moves to have defendant Brian O’Farrell dismissed from this action.

However, it does not appear from the record that petitioner ever served his motion to consolidate

and to dismiss one defendant on counsel for defendants. While the Court was able to render a

decision on plaintiff’s motion to consolidate without the input of defendants’ counsel, defendants

should be provided an opportunity to address the motion to dismiss before the Court renders a

decision on that issue. Accordingly, defendants’ counsel is directed to file a response to plaintiff’s

motion to dismiss defendant Brian O’Farrell from this action not later than December 22, 2006.

Plaintiff’s motion to dismiss (Dkt. No. 17) is RE-NOTED for consideration on the same date.

(3) Plaintiff’s motion for appointment of counsel (Dkt. No. 21) is DENIED. 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)(1), can request counsel to represent a party proceeding in forma

pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789

F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy , 745 F.2d 1221, 1236 (9th Cir. 1984);

Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). 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, 789

F.2d at 1331.

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ORDER DENYING PLAINTIFF’S MOTIONS TO

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Plaintiff has neither demonstrated a likelihood of success on the merits nor shown that, in

light of the complexity of the legal issues involved, he is unable to articulate his claims pro se.

Thus, plaintiff has not demonstrated that this case involves exceptional circumstances that warrant

appointment of counsel at the present time.

(4) The Clerk shall send copies of this Order to plaintiff, to counsel for defendants, and

to the Honorable James L. Robart.

DATED this 13th day of December, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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