Lough v. Washington State Department of Social and Health Services

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ROBERT LOUGH, CASE NO. 3:20-CV-05894-LK 11 Plaintiff, ORDER INVITING APPLICATION 12 v. FOR APPOINTMENT OF COUNSEL AND DIRECTING 13 WASHINGTON STATE DEPARTMENT PARTIES TO MEET AND CONFER OF SOCIAL AND HEALTH SERVICES, 14 et al., 15 Defendants. 16

17 This matter comes before the Court on remand from the United States Court of Appeals 18 for the Ninth Circuit. On July 18, 2022, this Court adopted the Report and Recommendation of 19 United States Magistrate Judge David W. Christel, denied Plaintiff Robert Lough’s motion for 20 partial summary judgment, and granted Defendants’ cross-motion for summary judgment on all of 21 Mr. Lough’s claims. Dkt. No. 110. The Ninth Circuit reversed. Dkt. No. 119. Although Mr. 22 Lough’s objections were nearly four months late and did not challenge Judge Christel’s ruling on 23 his First Amendment retaliation claim, see Dkt. No. 105, the Ninth Circuit found that “a genuine 24 1 issue of material fact exists regarding whether Defendants transferred Lough because of his First 2 Amendment-protected activity.” Dkt. No. 119 at 4; see also id. at 5–6. 3 Mr. Lough is proceeding pro se and in forma pauperis. Dkt. No. 9. In February 2021, Judge 4 Christel denied Mr. Lough’s motion for appointment of counsel without prejudice. Dkt. No. 31 at

5 6–7 (Mr. Lough’s request); Dkt. No. 34 at 7–8 (Judge Christel’s denial). The circumstances of this 6 case have since changed. “Even pro se plaintiffs with sufficient skills to survive summary 7 judgment are unlikely to be able to try a case,” Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 8 1998), so when a “case [involving a pro se plaintiff] proceeds to trial, [the court] should give 9 serious consideration to appointing counsel,” Federal Judicial Center, Civil Litigation 10 Management Manual, 135 (3d ed. 2022); see also, e.g., Perez v. Grey, No. 2:21-CV-00095-LK, 11 2023 WL 2758341, at *22 (W.D. Wash. Mar. 30, 2023) (inviting pro se litigant who survived 12 summary judgment to renew his motion for appointment of counsel); Davey v. Pierce Cnty. 13 Council, No. C21-05068-JCC-SKV, 2022 WL 3155368, at *1 (W.D. Wash. Aug. 8, 2022) 14 (granting pro se litigant’s request for appointment of counsel and observing that “litigation ha[d]

15 advanced” and “circumstances ha[d] changed” since the court’s denial of plaintiff’s request for 16 counsel, and that “litigating the merits of Plaintiff’s conditions of conferment claims [was] likely 17 to significantly increase the complexity of the litigation process”). Should Mr. Lough still desire 18 appointment of counsel, he may file a renewed motion seeking such appointment by no later than 19 October 20, 2023. 20 The Court further ORDERS the parties to meet and confer and file a joint status report 21 proposing a trial date and pre-trial deadlines by no later than December 1, 2023. The parties’ 22 proposed deadlines should provide at least as much time between deadlines and the proposed trial 23 date as provided in this Court’s scheduling template. See Standing Order for All Civil Cases,

24 Section I, https://www.wawd.uscourts.gov/sites/wawd/files/2023_01_09%20King%20Standing% 1 20Order%20re%20Civil%20Cases_.pdf. Furthermore, should the parties desire to engage in 2 mediation, they must provide proposed dates for mediation and inform the Court as to whether 3 they desire appointment of a mediator. See LCR 39.1(c)(3)–(4); Request for Pro Bono Mediation 4 Form, https://www.wawd.uscourts.gov/sites/wawd/files/RequestforProBonoMediation.pdf.

5 Dated this 5th day of October, 2023. 6 A 7 Lauren King United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23