Ejonga-Deogracias v. Sinclair

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8

9 JOJO EJONGA-DEOGRACIAS, Case No. C20-320-RSM

10 Plaintiff, ORDER DENYING MOTION FOR 11 APPOINTMENT OF COUNSEL. v. 12 13 STEPHEN SINCLAIR, et al.,

14 Defendants.

16 I. INTRODUCTION 17 Plaintiff proceeds pro se in this action brought under 42 U.S.C. § 1983 alleging First, 18 Eighth, and Fourteenth Amendment violations. This matter comes before the Court following 19 remand from the Ninth Circuit Court of Appeals and on Plaintiff’s Motion for Appointment of 20 Counsel (Dkt. #72). Because Plaintiff has failed to show the exceptional circumstances necessary 21 22 to appoint counsel, the Court denies the Motion. 23 II. BACKGROUND 24 Plaintiff, an inmate at the Monroe Correctional Complex of the Washington State 25 Department of Corrections (“MCC”), filed this action pro se under 42 U.S.C. § 1983 alleging 26 violations of his constitutional rights and the Americans with Disabilities Act (“ADA”). Dkt. #6. 27 28 Plaintiff claims violations under the First and Fourteenth Amendments related to Defendants’ enforcement of Department of Corrections policy 450.100-IV, which prohibited Plaintiff from 1 2 receiving 138 photos in a single mailing from the prosecutor’s office. Id. at 20. Plaintiff also 3 brings claims under the Eighth Amendment and the ADA regarding conditions at MCC related 4 to mold and noxious smells. 5 On November 25, 2020, Magistrate Judge Brian A. Tsuchida issued a Report and 6 Recommendation (“R&R”) recommending that the Court grant Defendants’ Motion for 7 8 Summary Judgment and dismiss the case with prejudice. Dkt. #45. Following several time 9 extensions, Plaintiff submitted Objections to the R&R on February 17, 2021. Dkt. #53. After 10 reviewing Plaintiff’s Complaint, the R&R, Plaintiff’s Objections, Defendants’ Response, and the 11 documents attached thereto, the Court agreed with the R&R’s conclusion that summary judgment 12 13 dismissal was appropriate. Dkt. #56. Accordingly, the Court adopted the R&R and dismissed 14 Plaintiff’s complaint with prejudice. Id.; Dkt. #57. 15 On March 19, 2021, Plaintiff appealed the Court’s Order Adopting Judge Tsuchida’s 16 R&R and dismissing Plaintiff’s complaint. Dkt. #58. Plaintiff was granted leave to proceed in 17 forma pauperis on appeal. Dkt. #65. The Ninth Circuit affirmed in part, reversed in part, and 18 19 remanded the case for further proceedings. Dkt. #71. The Ninth Circuit found that the Court 20 properly granted summary judgment on Plaintiff’s Eighth Amendment claim concerning a 21 noxious smell because Plaintiff failed to raise a genuine dispute of material fact as to whether 22 Defendants were deliberately indifferent to an excessive risk to inmate health or safety. Dkt. #70 23 at 2 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison officials are liable for denying 24 25 a prisoner humane conditions of confinement only if they know of and disregard a substantial 26 risk of serious harm)). However, the Ninth Circuit found that Plaintiff raised a genuine dispute 27 of material fact as to whether the Department of Corrections policy 450.100-IV as applied to 28 Plaintiff’s mail is reasonably related to a legitimate penological interest and as to whether his 1 2 incoming mail from the prosecutor’s office, concerning his criminal case, should have been 3 processed as legal mail. Id. at 3. The Ninth Circuit therefore reversed the Court’s Order Granting 4 Summary Judgment on this claim only and remanded for further proceedings. 5 Plaintiff now brings this Motion and requests the Court appoint counsel to assist him with 6 his case in preparation for trial. Dkt. #72. 7 8 III. ANALYSIS 9 There is no right to the appointment of counsel in a § 1983 action, and this Court appoints 10 counsel only in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 11 Cir. 1986). In determining whether exceptional circumstances exist, the Court looks to both 12 13 plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues 14 involved and the likelihood of success on the merits. Id. 15 In support of his request for appointment of counsel, Plaintiff states that he is indigent, 16 has been permitted to proceed in forma pauperis, and is imprisoned which will “greatly affect 17 his ability to prepare for trial, interview witnesses, and effectively prosecute his case.” Dkt. #72 18 19 at 1–3. Plaintiff misapprehends what constitutes “exceptional circumstances” under 28 U.S.C. § 20 1915(e)(1). 21 First, the Court cannot definitively determine whether Plaintiff is likely to succeed on the 22 merits of his remaining claims. Plaintiff does not elaborate on this factor in his Motion except 23 for pointing to the Ninth Circuit’s revival of his claim. Defendants argue that Plaintiff’s claim 24 25 at issue that remains after remand is subject to the qualified immunity defense. Dkt. #73 at 3 26 (“State agents such as defendants who act in reliance on a duly enacted policy or statute are 27 28 ordinarily entitled to qualified immunity.” Citing (Grossman v. City of Portland, 33, F.3d 1200, 1 2 1209 (9th Cir. 1994)). 3 Second, the remaining legal issues are not complex, and Plaintiff has shown that he is 4 able to articulate the legal issues and underlying facts, including filing numerous, coherent 5 motions during the course of the litigation. Plaintiff has not shown nor does the Court find that 6 this case involves complex facts or law. Plaintiff has also not shown an inability to articulate the 7 8 factual basis of his remaining claim in a manner understandable to the Court. Additionally, 9 “Plaintiff's incarceration and limited access to legal materials are not exceptional factors 10 constituting exceptional circumstances that warrant the appointment of counsel. Rather, they are 11 the type of difficulties encountered by many pro se litigants.” Dancer v. Jeske, 2009 WL 12 13 1110432, *1 (W.D. Wash. Apr. 24, 2009). As such, the Court finds Plaintiff has failed to show 14 the appointment of counsel is appropriate at this time. Therefore, Plaintiff's request for counsel 15 is denied. 16 IV. CONCLUSION 17 Having considered the briefing and the remainder of the record, the Court finds and 18 19 ORDERS that Plaintiff’s Motion for Appointment of Counsel, Dkt. #72 is DENIED. 20 21 DATED this 7th day of July, 2023. 22

23 24 A 25 RICARDO S. MARTINEZ 26 UNITED STATES DISTRICT JUDGE 27 28