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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DENGE LEMO GAHANO, Case No. C20-1094-MJP-MLP 11 Petitioner, ORDER 12 v. 13 NATALIE ASHER, et al., 14 Respondents. 15 16 I. INTRODUCTION 17 Currently pending before the Court is Petitioner’s: (1) Motion for Leave to Exceed Page 18 Limits (dkt. # 21); (2) Motion to Disqualify the Government Attorney “for the Conflict of 19 Interest” (dkt. # 23); and (3) Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to 20 Respondent’s Motion to Dismiss” (dkt. # 24). Furthermore, the Court has reconsidered its earlier 21 denial of Petitioner’s Motion to Appoint Counsel (dkt. # 17). 22 Having considered the Petitioner’s submissions, the governing law, and the balance of the 23 record, Petitioner’s Motion for Leave to Exceed Page Limits (dkt. # 21) is GRANTED, 24 1 Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” (dkt. 2 # 23) is DENIED, and Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J 3 attached to Respondent’s Motion to Dismiss” (dkt. # 24) is DENIED. In addition, the Court now 4 GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3), as further explained below.
5 II. DISCUSSION 6 A. Motion for Leave to Exceed Page Limits (dkt. # 21) 7 First, Petitioner’s Motion for Leave to Exceed Page Limits identifies that his Response in 8 Opposition to Respondents’ Motion to Dismiss (“Petitioner’s Response”) (dkt. # 22) exceeded 9 page limits in order to fully address the issues raised by Respondents and Respondents’ attached 10 exhibits. (Dkt. # 21 at 1-2.) Petitioner’s Response totals 29 pages. (See dkt. # 22.) Under Local 11 Rule 7(e)(3), briefs in opposition to a motion to dismiss shall not exceed 24-pages. If the Court 12 grants leave to file an over-length motion, the brief in opposition will automatically be allowed 13 an equal number of additional pages. See Local Rule 7(f)(4). In all cases, the reply brief shall not 14 exceed one-half the total length of the brief filed in opposition. Id.
15 Here, the Court finds Petitioner has provided good cause for filing an over-length 16 Response, and therefore, Petitioner’s Motion for Leave to Exceed Page Limits is GRANTED, 17 and Petitioner’s Response is accepted. Consequently, Respondents are permitted to file a reply 18 brief to Petitioner’s Response, with an additional two (2) pages authorized, for a total of 14 19 pages. 20 B. Motion to Disqualify the Government Attorney (dkt. # 23) 21 Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” 22 seeks to disqualify the Office of the Attorney General and attorney Tim Ramnitz from appearing 23 in this matter. (Dkt. # 23 at 1-2.) Petitioner generally argues that the Office of Attorney General
24 1 is not a proper respondent in this action and was included due to Petitioner’s ignorance on the 2 issue. (Id. at 2.) Petitioner additionally argues that Mr. Ramnitz has a conflict of interest in his 3 representation of Respondents in this case because of his familiarity with the immigration judge 4 who adjudicated his immigration status in his immigration proceedings below. (Id. at 3-4.)
5 The United States Attorney General’s Office was previously named by Petitioner as a 6 respondent but was terminated from this action by the Clerk’s Office on August 6, 2020, after 7 Petitioner submitted his amended habeas petition. (See dkt # 9.) Furthermore, Petitioner’s 8 allegations concerning Mr. Ramnitz’s conflict of interest because of his familiarity with the 9 immigration judge who handled Petitioner’s case are merely speculative and conclusory. 10 Accordingly, Petitioner’s Motion to Disqualify the Government Attorney is DENIED. 11 C. Motion to Strike (dkt. # 24) 12 Next, Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to 13 Respondents’ Motion to Dismiss” seeks to have the enumerated exhibits stricken as improperly 14 redacted. (Dkt. # 24 at 1-2.) Petitioner generally argues that Respondents failed to claim that the
15 redactions were privileged, failed to provide evidence that that the redactions were done solely 16 on the basis of personal identifiers, and that the “systematic redaction” of the exhibits violates his 17 due process rights in adjusting his status to a lawful permanent resident. (Id. at 2-3; see dkt. # 16, 18 Exs. B, D, E, J.) Petitioner additionally takes issue with various facts specifically asserted in 19 Exhibit A. (Id. at 4; see dkt. # 16, Ex. A.) However, based on the Court’s review of the record 20 and Respondents’ attached exhibits to its Motion to Dismiss, the Court does not find that 21 Respondent’s exhibits were inappropriately redacted in this matter. Accordingly, Petitioner’s 22 Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondent’s Motion to 23 Dismiss” is DENIED.
24 1 D. Motion to Appoint Counsel (dkt. # 3) 2 Finally, the Court issues this Order sua sponte after reconsidering its earlier denial of 3 Petitioner’s Motion to Appoint Counsel. (Dkt. # 17.) The Court finds that the developments 4 outlined below warrant appointment of counsel.
5 “In proceedings in forma pauperis, the district court ‘may request an attorney to represent 6 any person unable to afford counsel’”—a decision within the Court’s sound discretion. Agyeman 7 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting 28 U.S.C. § 1915(e)(1)). In 8 considering a motion to appoint counsel, the Court must evaluate both “the likelihood of success 9 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 10 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 11 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 12 The Court finds appointment of counsel appropriate. The Court earlier denied Petitioner’s 13 Motion to Appoint Counsel, finding it unlikely that Petitioner would succeed on the merits, that 14 he was capable of articulating his claims pro se, and that his fear of retaliatory removal was
15 unfounded because the Ninth Circuit stayed his removal. (Dkt. # 17 at 2.) However, three 16 developments warrant reconsideration. First, the Ninth Circuit’s stay of removal is no longer 17 pending, and it appears Respondents are seeking Petitioner’s immediate removal. (See dkt. # 27.) 18 Second, Petitioner’s habeas petition raises novel issues related to the application of Ramos v. 19 Lousiana, 590 U.S. ____ (2020) to the validity of his detention which the Ninth Circuit did not 20 address in ruling on his administrative appeal. See Gahano v. Barr, No. 18-72796, 21 Memorandum, Dkt. No. 61-1 (9th Cir. Sept. 10, 2020). Acting pro se, Petitioner faces significant 22 challenges in litigating a novel and complex legal issue without direct guidance from the Ninth 23 Circuit on which he may well succeed. Third, Petitioner pursues a separate civil case before the
24 1 Court that raises matters collaterally related to his continued detention. See Gahano v. Langford, 2 et al., C20-5451-MJP-MLP (W.D. Wash.). 3 Given these changed circumstances, the Court finds that appointed counsel would 4 considerably assist in the efficient prosecution of this matter and the Court’s resolution of the
5 matter. The Court therefore reconsiders its prior Order (dkt. # 17), GRANTS Petitioner’s Motion 6 to Appoint Counsel (dkt. # 3), and refers this matter to Pro Bono Panel to represent Petitioner.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DENGE LEMO GAHANO, Case No. C20-1094-MJP-MLP 11 Petitioner, ORDER 12 v. 13 NATALIE ASHER, et al., 14 Respondents. 15 16 I. INTRODUCTION 17 Currently pending before the Court is Petitioner’s: (1) Motion for Leave to Exceed Page 18 Limits (dkt. # 21); (2) Motion to Disqualify the Government Attorney “for the Conflict of 19 Interest” (dkt. # 23); and (3) Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to 20 Respondent’s Motion to Dismiss” (dkt. # 24). Furthermore, the Court has reconsidered its earlier 21 denial of Petitioner’s Motion to Appoint Counsel (dkt. # 17). 22 Having considered the Petitioner’s submissions, the governing law, and the balance of the 23 record, Petitioner’s Motion for Leave to Exceed Page Limits (dkt. # 21) is GRANTED, 24 1 Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” (dkt. 2 # 23) is DENIED, and Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J 3 attached to Respondent’s Motion to Dismiss” (dkt. # 24) is DENIED. In addition, the Court now 4 GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3), as further explained below.
5 II. DISCUSSION 6 A. Motion for Leave to Exceed Page Limits (dkt. # 21) 7 First, Petitioner’s Motion for Leave to Exceed Page Limits identifies that his Response in 8 Opposition to Respondents’ Motion to Dismiss (“Petitioner’s Response”) (dkt. # 22) exceeded 9 page limits in order to fully address the issues raised by Respondents and Respondents’ attached 10 exhibits. (Dkt. # 21 at 1-2.) Petitioner’s Response totals 29 pages. (See dkt. # 22.) Under Local 11 Rule 7(e)(3), briefs in opposition to a motion to dismiss shall not exceed 24-pages. If the Court 12 grants leave to file an over-length motion, the brief in opposition will automatically be allowed 13 an equal number of additional pages. See Local Rule 7(f)(4). In all cases, the reply brief shall not 14 exceed one-half the total length of the brief filed in opposition. Id.
15 Here, the Court finds Petitioner has provided good cause for filing an over-length 16 Response, and therefore, Petitioner’s Motion for Leave to Exceed Page Limits is GRANTED, 17 and Petitioner’s Response is accepted. Consequently, Respondents are permitted to file a reply 18 brief to Petitioner’s Response, with an additional two (2) pages authorized, for a total of 14 19 pages. 20 B. Motion to Disqualify the Government Attorney (dkt. # 23) 21 Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” 22 seeks to disqualify the Office of the Attorney General and attorney Tim Ramnitz from appearing 23 in this matter. (Dkt. # 23 at 1-2.) Petitioner generally argues that the Office of Attorney General
24 1 is not a proper respondent in this action and was included due to Petitioner’s ignorance on the 2 issue. (Id. at 2.) Petitioner additionally argues that Mr. Ramnitz has a conflict of interest in his 3 representation of Respondents in this case because of his familiarity with the immigration judge 4 who adjudicated his immigration status in his immigration proceedings below. (Id. at 3-4.)
5 The United States Attorney General’s Office was previously named by Petitioner as a 6 respondent but was terminated from this action by the Clerk’s Office on August 6, 2020, after 7 Petitioner submitted his amended habeas petition. (See dkt # 9.) Furthermore, Petitioner’s 8 allegations concerning Mr. Ramnitz’s conflict of interest because of his familiarity with the 9 immigration judge who handled Petitioner’s case are merely speculative and conclusory. 10 Accordingly, Petitioner’s Motion to Disqualify the Government Attorney is DENIED. 11 C. Motion to Strike (dkt. # 24) 12 Next, Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to 13 Respondents’ Motion to Dismiss” seeks to have the enumerated exhibits stricken as improperly 14 redacted. (Dkt. # 24 at 1-2.) Petitioner generally argues that Respondents failed to claim that the
15 redactions were privileged, failed to provide evidence that that the redactions were done solely 16 on the basis of personal identifiers, and that the “systematic redaction” of the exhibits violates his 17 due process rights in adjusting his status to a lawful permanent resident. (Id. at 2-3; see dkt. # 16, 18 Exs. B, D, E, J.) Petitioner additionally takes issue with various facts specifically asserted in 19 Exhibit A. (Id. at 4; see dkt. # 16, Ex. A.) However, based on the Court’s review of the record 20 and Respondents’ attached exhibits to its Motion to Dismiss, the Court does not find that 21 Respondent’s exhibits were inappropriately redacted in this matter. Accordingly, Petitioner’s 22 Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondent’s Motion to 23 Dismiss” is DENIED.
24 1 D. Motion to Appoint Counsel (dkt. # 3) 2 Finally, the Court issues this Order sua sponte after reconsidering its earlier denial of 3 Petitioner’s Motion to Appoint Counsel. (Dkt. # 17.) The Court finds that the developments 4 outlined below warrant appointment of counsel.
5 “In proceedings in forma pauperis, the district court ‘may request an attorney to represent 6 any person unable to afford counsel’”—a decision within the Court’s sound discretion. Agyeman 7 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting 28 U.S.C. § 1915(e)(1)). In 8 considering a motion to appoint counsel, the Court must evaluate both “the likelihood of success 9 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 10 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 11 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 12 The Court finds appointment of counsel appropriate. The Court earlier denied Petitioner’s 13 Motion to Appoint Counsel, finding it unlikely that Petitioner would succeed on the merits, that 14 he was capable of articulating his claims pro se, and that his fear of retaliatory removal was
15 unfounded because the Ninth Circuit stayed his removal. (Dkt. # 17 at 2.) However, three 16 developments warrant reconsideration. First, the Ninth Circuit’s stay of removal is no longer 17 pending, and it appears Respondents are seeking Petitioner’s immediate removal. (See dkt. # 27.) 18 Second, Petitioner’s habeas petition raises novel issues related to the application of Ramos v. 19 Lousiana, 590 U.S. ____ (2020) to the validity of his detention which the Ninth Circuit did not 20 address in ruling on his administrative appeal. See Gahano v. Barr, No. 18-72796, 21 Memorandum, Dkt. No. 61-1 (9th Cir. Sept. 10, 2020). Acting pro se, Petitioner faces significant 22 challenges in litigating a novel and complex legal issue without direct guidance from the Ninth 23 Circuit on which he may well succeed. Third, Petitioner pursues a separate civil case before the
24 1 Court that raises matters collaterally related to his continued detention. See Gahano v. Langford, 2 et al., C20-5451-MJP-MLP (W.D. Wash.). 3 Given these changed circumstances, the Court finds that appointed counsel would 4 considerably assist in the efficient prosecution of this matter and the Court’s resolution of the
5 matter. The Court therefore reconsiders its prior Order (dkt. # 17), GRANTS Petitioner’s Motion 6 to Appoint Counsel (dkt. # 3), and refers this matter to Pro Bono Panel to represent Petitioner. 7 After that, the Court will issue an Order appointing an attorney, should one be identified. 8 III. CONCLUSION 9 For the foregoing reasons, the Court hereby ORDERS: 10 (1) Petitioner’s Motion for Leave to Exceed Page Limits (dkt. # 21) is GRANTED, 11 and Petitioner’s over-length motion (dkt. # 22) is accepted. Pursuant to Local Rule 7(f)(4), 12 Respondents are permitted to file a reply brief to Petitioner’s Response by January 29, 2021, 13 with an additional two (2) pages authorized, for a total of 14 pages. The Clerk is directed to 14 re-note the Government’s return memorandum (dkt. # 16) for January 29, 2021;
15 (2) Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of 16 Interest” (dkt. # 23) is DENIED; 17 (3) Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to 18 Respondents’ Motion to Dismiss” (dkt. # 24) is DENIED; 19 (4) The Court reconsiders its previous Order Denying Petitioner’s Motion to Appoint 20 Counsel (dkt. # 17) and now GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3). This 21 matter is referred to the Pro Bono Panel to represent Petitioner. After that, the Court will issue an 22 Order appointing an attorney, should one be identified; 23
24 1 (5) Respondents are directed to respond to Petitioner’s Motion for Stay of Removal 2 (dkt. # 25) on or before January 29, 2021; and 3 (6) The Clerk is directed to send copies of this Order to the parties and to the 4 Honorable Marsha J. Pechman.
5 Dated this 7th day of January, 2021. 6 A 7 MICHELLE L. PETERSON United States Magistrate Judge 8
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