Ejonga v. Watanabe

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOJO DEOGRACIAS EJONGA, CASE NO. 2:21-cv-01004-RJB-GJL 11 Plaintiff, ORDER ON MOTION TO 12 v. APPOINT COUNSEL AND A MAGISTRATE JUDGE FOR A 13 CHERYL STRANGE; MICHAEL SETTLEMENT CONFERENCE OBENLAND; ERIC JACKSON; JOHN 14 DOE; CAROL SMITH; JANE DOE; JACK WARNER; LEE STEMLER; ALEX 15 WANTANBE; ARBEN KULLOJKA; JON DOE, 16 Defendants. 17 18 This matter comes before the Court on the Plaintiff’s Motion for the Appointment of 19 Counsel for Trial and Magistrate Judge for Negotiation. Dkt. 159. The Court has considered the 20 pleadings filed regarding the motion and the remaining file. 21 For the reasons provided below, the motion for the appointment of counsel (Dkt. 159) 22 should be granted conditionally, contingent on the identification of counsel willing to represent 23 24 1 the Plaintiff pro bono in this case. The motion to appoint a magistrate judge for settlement 2 purposes (Dkt. 159) should be denied without prejudice. 3 FACTS 4 On July 27, 2021, the Plaintiff, a pro se prisoner presently housed at Stafford Creek 5 Corrections Center, filed this civil rights case pursuant to 42 U.S.C. § 1983, asserting several

6 claims. Dkt. 1. On October 19, 2023, a Report and Recommendation (Dkt. 154) was adopted 7 dismissing all Plaintiff’s claims except his claim for First Amendment retaliation against 8 Defendant Alex Watanabe. Dkt. 157. The Plaintiff’s retaliation claim arises from a kiosk 9 message from Plaintiff to prison officials. Id. The message at issue provided, “It is crazy while 10 yall [sic] got me sick, torture me in IMU, I grieve yall [sic], then yall [sic] want to write me up. 11 This is intimidation and Harassment. Let Watanabe know, I will see her in Court.” Dkt. 65 at 13. 12 As a result of the message, Defendant Watanabe, a prison grievance coordinator, filed a 13 Washington Administrative Code (“WAC”) 663 serious infraction notice against the Plaintiff. 14 Id. at 48. After a hearing on the infraction, the Plaintiff was found not guilty. This lawsuit

15 followed. Id. at 50-51. 16 After the Report and Recommendation was adopted and all claims but the retaliation 17 claim were dismissed, the parties were ordered to inform the Court if they would like it to 18 appoint a magistrate judge to conduct a settlement conference. Dkt. 158. The parties responded 19 and do not agree. Id. 20 DISCUSSION 21 A. MOTION TO APPOINT COUNSEL 22 1. Standard 23 24 1 Under 28 U.S.C. § 1915(e)(1), the court may request an attorney to represent any person 2 unable to afford counsel. Under Section 1915, the court may appoint counsel in exceptional 3 circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To find exceptional 4 circumstances, the court must evaluate the likelihood of success on the merits and the ability of 5 the petitioner to articulate the claims pro se in light of the complexity of the legal issues

6 involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 7 The Court is not authorized to compel counsel to serve in a civil case; it may only 8 “request” that counsel serve. 28 U.S.C. § 1915(e)(1); U.S. v. 30.64 Acres of Land, 795 F.2d 796, 9 801 (9th Cir. 1986). Further, no statute provides funds to pay counsel appointed under § 10 1915(e). Id. Accordingly, the court is limited to making a request for pro bono counsel to 11 provide voluntary representation. 12 If the Court determines that extraordinary circumstances warrant appointment of counsel, 13 it will direct the Clerk of the Court to identify an attorney from the District’s Pro Bono Panel 14 who is willing to represent the Plaintiff in accordance with this District’s Pro Bono Plan. See

15 General Order No. 16-20, Section 4(b) (Dec. 8, 2020). Only after such an attorney is identified 16 will the Court issue an order appointing him or her to represent the Plaintiff. See Id. 17 2. The Plaintiff’s Motion for Appointment of Counsel 18 The motion to appoint counsel should be conditionally granted. While the Court cannot 19 definitively determine the Plaintiff’s likelihood of success on the merits, his retaliation claim has 20 survived summary judgment. Additionally, the Plaintiff contends that he will have difficulty 21 trying the case while in prison. His case presents sufficient exceptional circumstances to warrant 22 conditional appointment of counsel. 23 B. MOTION TO APPOINT MAGISTRATE JUDGE FOR SETTLEMENT CONFERENCE 24 1 2 The Plaintiff’s motion for the appointment of a magistrate judge to conduct a settlement 3 conference should be denied without prejudice. The Defendants have responded and indicate 4 they do not believe that a settlement conference with a magistrate judge would be productive. 5 Dkt. 160. The parties are free to notify the Court at a later date if they agree that such an

6 appointment would be helpful. 7 ORDER 8 It is ORDERED that: 9  Plaintiff’s Motion for the Appointment of Counsel for Trial (Dkt. 159) IS GRANTED 10 CONDITIONALLY, contingent on the identification of counsel willing to represent the 11 Plaintiff pro bono in this case; and 12  Plaintiff’s Motion for the Appointment of a Magistrate Judge for Negotiation (Dkt. 159) 13 IS DENIED WITHOUT PREJUDICE. 14 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

15 to any party appearing pro se at said party’s last known address. 16 Dated this 1st day of December, 2023. 17 A

18 ROBERT J. BRYAN 19 United States District Judge 20 21 22 23 24