Davey v. Pierce County Council

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JUSTIN ALLEN DAVEY, 9 Plaintiff, Case No. C21-05068-JCC-SKV 10 v. ORDER RECONSIDERING REQUEST FOR APPOINTMENT OF COUNSEL 11 PIERCE COUNTY COUNCIL, et al., AND DIRECTING PRO BONO COORDINATOR TO IDENTIFY PRO 12 Defendant. BONO COUNSEL 13

14 This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff previously moved for 15 appointment of counsel. Dkt. 24. The Court previously denied that motion without prejudice. 16 Dkt. 31. For the reasons below, the Court hereby sua sponte reconsiders Plaintiff’s request for 17 appointment of counsel and concludes that extraordinary circumstances now support the 18 appointment of counsel in this case. Plaintiff’s request for appointment of counsel, Dkt. 24, is 19 granted as provided below. 20 Generally, the decision to appoint pro bono counsel rests within “the sound discretion of 21 the trial court and is granted only in exceptional circumstances.” Agyeman v. Corrections Corp. 22 of America, 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances 23 requires an evaluation of both the likelihood of success on the merits and the ability of the

ORDER RECONSIDERING REQUEST FOR 1 plaintiff to articulate his or her claims pro se in light of the complexity of the legal issues 2 involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citations omitted). Neither of 3 these factors is dispositive, and the factors must be viewed together before reaching a decision 4 regarding appointment of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

5 Plaintiff previously moved for appointment of counsel shortly after commencing this 6 action. Dkt. 24. The Court denied the motion at that time finding that, because Plaintiff’s 7 amended complaint had just been served and Defendants had not yet filed an answer, it was too 8 early in the case to assess Plaintiff’s likelihood of success on the merits. Dkt. 31. The Court also 9 found that, at that early stage, the Court could not conclude that Plaintiff’s claims, that 10 Defendants failed to properly address allegedly unsanitary conditions due to sewage backups in 11 Plaintiff’s unit at Pierce County Jail, were particularly complex. Id. The Court further found 12 that, at that early stage of the case, Plaintiff had demonstrated an adequate ability to articulate his 13 claims pro se. Id. 14 Since the order denying Plaintiff’s request for counsel, the litigation has advanced, and

15 circumstances have changed. While the Court cannot, at this time, definitely determine 16 Plaintiff’s ultimate likelihood of success on the merits, the vast majority of his claims have now 17 survived a motion to dismiss. See Dkt. 71. Furthermore, completing discovery and litigating the 18 merits of Plaintiff’s conditions of confinement claims is likely to significantly increase the 19 complexity of the litigation process, may require the ability to investigate the status of the 20 plumbing and sewage system at Pierce County Jail, and potentially the ability to consult an 21 expert or develop expert evidence. Accordingly, the Court finds that Plaintiff has at this time 22 demonstrated a sufficient potential for success on the merits and that, in light of the increasing 23

ORDER RECONSIDERING REQUEST FOR 1 complexity of the litigation process at this stage, Plaintiff will face increasing challenges 2 litigating and articulating his claims pro se. 3 The Court notes that Plaintiff has also asserted he faces additional difficulty litigating his 4 case pro se due to his mental illness. Dkt. 24. While not dispositive on its own as there is

5 limited information before the Court regarding the nature and impact of Plaintiff’s mental illness, 6 considering all of the other factors discussed above, the Court finds that the fact that Plaintiff 7 asserts he has a mental illness that may have the potential to affect his ability to litigate his case, 8 also weighs in favor of appointing counsel. Accordingly, the Court concludes that this case 9 presents extraordinary circumstances that support the appointment of counsel pursuant to 28 10 U.S.C. § 1915. 11 CONCLUSION AND DIRECTIONS TO CLERK 12 Upon reconsideration, Plaintiff’s request for appointment of counsel, Dkt. 24, is granted, 13 contingent on the identification of counsel willing to represent Plaintiff in this matter. The 14 Western District of Washington’s pro bono coordinator is directed to identify counsel to

15 represent Plaintiff, in accordance with the Court’s General Order 16-20 (“In re: Amended Plan 16 for the Representation of Pro Se Litigants in Civil Rights Actions”), section 4. Once it has been 17 determined whether the Court will be able to appoint an attorney to represent Plaintiff, the Court 18 will issue appropriate orders. 19 The Clerk shall send a copy of this order to Plaintiff, counsel for Defendants, the pro 20 bono coordinator, and the Honorable Lauren King. 21 Dated this 8th day of August, 2022. 22 A 23 S. KATE VAUGHAN United States Magistrate Judge

ORDER RECONSIDERING REQUEST FOR