Murray v. King County Court

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 SARA MURRAY, CASE NO. 24-cv-00239 8 Plaintiff, ORDER 9 v. 10 KING COUNTY COURT ET AL. , 11 Defendants. 12 13 1. INTRODUCTION 14 This matter comes before the Court on Plaintiff Sara Murray’s Combined 15 Emergency Motion for Reconsideration, Recusal, Injunctive Relief, and to File 16 Documents Under Seal. Dkt. No. 35. For the reasons stated below, the Court 17 GRANTS the motion for reconsideration and DIRECTS the District’s Pro Bono 18 Panel Coordinator to try to identify an attorney(s) or law firm from the Pro Bono 19 Panel to represent Murray; DENIES the motion to recuse; DENIES the motion for 20 preliminary injunctive relief; and DENIES without prejudice the motion for 21 permission to file the named report under seal. 22 23 1 2. BACKGROUND 2 Plaintiff Sara Murray filed this case in the U.S. District Court for the District

3 of Oregon on December 15, 2023. Dkt. No. 1. On the same day, she filed her first 4 motion for appointment of counsel. Dkt. No. 4. In light of the “complex jurisdictional 5 questions” raised by the complaint, the court granted her motion for appointment of 6 counsel “for the limited purpose of advising Murray on: (1) whether to proceed with 7 her case in this court or file her lawsuit elsewhere, and (2) which claims she can 8 plausibly bring in her chosen jurisdiction.” Dkt. No. 12.

9 With assistance of that court-appointed counsel, Murray moved to transfer 10 her case to the Western District of Washington, asserting that “[v]enue is proper in 11 the Western District of Washington as all relevant events took place, and all 12 relevant defendants are located, in King County, Washington.” Dkt. No. 15. The 13 Oregon district court granted the motion, Dkt. No. 16, and on February 21, 2024, 14 Murray’s case was transferred to this district. Dkt. No. 17. Just after, Murray’s 15 counsel withdrew from the representation, having fulfilled the limited purpose for

16 which she had been appointed. Dkt. No. 20. 17 After Murray’s case was transferred to this district, Murray was granted 18 leave to proceed in forma pauperis (IFP). Dkt. No. 26. In the order granting IFP 19 status, the Honorable Michelle Peterson, U.S. Magistrate Judge, “recommend[ed] 20 the complaint be reviewed under 28 U.S.C. § 1915(e)(2)(B) before issuance of 21 summons.” Dkt. No. 26 at 1. But on April 8, 2024, before the Court could conduct its

22 Section 1915 review, Murray filed a third amended complaint. Dkt. No. 27. 23 1 At 276 pages, the third amended complaint—now the operative pleading—is 2 sprawling in scope, asserting a dizzying litany of claims against 37 distinct

3 defendants. See id. Despite its immense length, the pleading appears unfinished, 4 terminating mid-sentence on its final page. Id. at 276. While it is hard to make out 5 the exact nature of Murray’s claims through the many conclusory and confusing 6 details stated, the gist appears to remain the same as what she pled in her original 7 complaint, which United States Magistrate Judge Jeff Armistead of the District 8 Court of Oregon analyzed as follows:

9 “First, she claims that state officials discriminated against her based on her disability and gender, failed to accommodate her disability, and 10 denied her due process during child custody proceedings, in violation of the United States Constitution and the Americans with Disabilities Act. 11 … Second, she alleges that state officials were negligent in their investigation of abuse allegations against her ex-husband. … Third, she 12 alleges that her ex-husband coerced her into signing ownership of her company over to him and continues to unlawfully exercise control over 13 her company. … Fourth, she alleges that her ex-husband and others told lies about her, which ruined her social reputation and led to her losing 14 control of her business. … Finally, Murray alleges that her ex-husband, his girlfriend, and his mother, have caused her emotional distress by 15 harassing her, stalking her, and mistreating her children.

16 Dkt. No. 5 at 1–2 (emphasis in original). Murray brings these claims in her own 17 name and on behalf of her minor children, G.E.M. and C.M.M., over whom she no 18 longer has custody. 19 On April 16, 2024, shortly after Murray’s former attorney withdrew from the 20 representation, Murray moved again for appointment of pro bono counsel on behalf 21 of herself and the minor children plaintiffs named in her third amended complaint. 22 Dkt. No. 28. Upon review of the record and applicable law, this Court denied 23 Murray’s motion for appointment of counsel, explaining that “[t]hrough her various 1 filings [Murray] has shown a basic grasp of court procedure and an ability to convey 2 her thoughts in writing,” yet due to specific “material defects in her complaint,” “has

3 not shown a likelihood of success on the merits of her claim.” Dkt. No. 34 at 10. The 4 Court instructed Murray to amend her complaint so as to “replead[ ] her claims in 5 short and plain terms with a focus on the factual, not legal, basis for her causes of 6 action” and granted thirty days to comply. Id. The Court also dismissed the claims 7 brought on behalf of Murray’s children without prejudice, explaining that non- 8 attorneys generally may not represent others. Id. at 5 (citing Johns v. Ctny. of San

9 Diego, 114 F.3d 874, 876 (9th Cir. 1997)). 10 On September 6, 2024, Murray filed this motion, seeking (1) reconsideration 11 of this Court’s Order denying appointment of pro bono counsel; (2) recusal of this 12 judge and reassignment of her case to a federal judge outside Washington State; (3) 13 ex parte preliminary injunctive relief ordering, among other things, forensic 14 interviews of Murray’s children and temporary placement of the children in 15 Murray’s custody; and (4) permission to file a forensic report detailing abuse of one

16 of Murray’s children under seal. Dkt. No. 35. The Court considers each of these 17 requests in turn. 18 3. DISCUSSION 19 3.1 The Court reconsiders its prior ruling denying appointment of pro bono counsel and refers this case to the District’s Pro Bono Panel for 20 potential representation. Murray asks the Court to reconsider its ruling denying her appointment of 21 pro bono counsel. “Motions for reconsideration are disfavored,” LCR 7(h)(1), and 22 “should not be granted, absent highly unusual circumstances, unless the district 23 1 court is presented with newly discovered evidence, committed clear error, or if there 2 is an intervening change in the controlling law.” Marlyn Natraceuticals, Inc. v.

3 Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). “Whether or not to 4 grant reconsideration is committed to the sound discretion of the court.” Navajo 5 Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 1041, 1046 6 (9th Cir. 2003). 7 Murray alleges a jumble of errors by the Court in its prior ruling, most of 8 which merit no discussion. But her claims about her disability status and its impact

9 on her ability to litigate in her own name require a closer look. In her motion, 10 Murray says that she has Post-Traumatic Stress Disorder (PTSD) symptoms, 11 including “vivid and distressing nightmares involving Cluster B assailants, which 12 force [her] to relive the traumas and physiological pain, [which] have severely 13 impacted [Murray’s] daily functioning.” Dkt. No. 35 at 13. She claims that her 14 condition causes her “to lose the ability to perform basic daily functions, let alone 15 engage in the complex and demanding process of amending a legal complaint.” Id.

16 at 14. She submitted two letters from her doctor in support of her motion, attesting 17 to “significant panic attacks, gastrointestinal distress, cognitive lapses and 18 difficulty understanding what is required when in court.” Id. at 30. And stating a 19 belief that Murray’s “mental health condition will be triggered and exacerbated 20 during the [legal] proceedings and as a result, temporarily will not have the 21 capacity to represent herself.” Id. at 31.

22 This newly submitted information supports a conclusion that Murray’s 23 physical and mental impairments, together with the complexity of the legal issues 1 involved, render her unable to adequately articulate her claims. See Wilborn v. 2 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (appointment of counsel under Section 1915 appropriate only in “exceptional circumstances”; whether “exceptional 3 circumstances” exists “requires an evaluation of both ‘the likelihood of success on the 4 merits [and] the ability of the petitioner to articulate his claims pro se in light of the 5 complexity of the legal issues involved.’”) (quoting Weygandt v. Look, 718 F.2d 952, 954 6 (9th Cir. 1983)). Murray might present legitimate grievances meriting judicial 7 redress. But the sprawling complexity and lack of factual clarity in her pleadings to- 8 date have hindered the Court’s assessment of her claims. Murray has been unable 9 to articulate her claims pro se in a manner that facilitates a proper and efficient 10 Section 1915 review. Accordingly, the Court GRANTS Murray’s motion for 11 reconsideration and DIRECTS the District’s Coordinator of the Pro Bono Panel to 12 try to identify an attorney(s) or law firm from the Pro Bono Panel to represent 13 Murray for all further proceedings. 14 The Court notes, however, that it lacks authority to compel counsel to 15 represent Murray. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 16 (1989). Instead, the Court may only “request” counsel to serve. See 28 U.S.C. § 17 1915(e) (“The court may request an attorney to represent any person unable to 18 afford counsel.”); U.S. v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986) 19 (holding that Section 1915 permits a court to “request” counsel, not to compel 20 representation). Nor may the Court appoint publicly funded counsel, such as the 21 Federal Public Defender. “The Supreme Court has declared that ‘the expenditure of 22 public funds [on behalf of an indigent litigant] is proper only when authorized by 23 1 Congress.’” Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). Congress has not provided funds to pay counsel 2 secured under 28 U.S.C. § 1915(e). See 30.64 Acres of Land, 795 F.2d at 801. 3 Thus, the Court cannot guarantee representation to Murray. The Court’s power, 4 on granting this motion to reconsider, is limited to making a request for representation 5 via the pro bono panel. Appointment will be contingent on the panel’s capacity to locate 6 counsel willing to voluntarily represent Murray pro bono. Likewise, this order should 7 not be interpreted as appointing counsel to Murray’s minor children. A minor child may 8 sue in federal court through an appointed representative, such as a general guardian. 9 Fed. R. Civ. P. 17(c)(1). Murray no longer has custody of her children and has not 10 petitioned the Court to represent their interest, so she does not possess the right to 11 make legal claims or demands—such as the appointment of counsel—on their behalf. 12 3.2 The Court denies Murray’s request for recusal. 13 The Court turns now to Murray’s recusal motion. Dkt. No. 35 at 22-23. 14 Noting that “judicial decisions in cases involving domestic violence and abuse can be 15 influenced by unconscious biases,” Murray asserts—without citing any particular 16 rulings—that “Judge Whitehead’s prior rulings appear to demonstrate a similar 17 bias, raising concerns about Plaintiffs’ ability to receive a fair trial.” Id. Along with 18 asking for recusal (and despite having earlier moved to transfer this case from 19 Oregon to Washington, see Dkt. No. 15), Murray also asks that “this case be 20 reassigned to a federal judge from outside Washington to mitigate concerns of bias 21 and ensure fairness in these proceedings.” Dkt. No. 35 at 23. Murray characterizes 22 this transfer request as being “in line with Judge Armstead of the District of 23 1 Oregon’s suggestion,” yet offers no insight or evidence about the alleged content or 2 context of Judge Armstead’s so-called “suggestion.” See id.

3 When a party moves to recuse under 28 U.S.C. § 144 or 28 U.S.C. § 455, “the 4 challenged judge will review the motion papers and decide whether to recuse 5 voluntarily.” LCR 3(f). A federal judge must disqualify themself from any 6 proceeding in which their “impartiality might reasonably be questioned.” 28 U.S.C. 7 § 455(a). Recusal is also required when a party files a “timely and sufficient 8 affidavit that the judge before whom [their] matter is pending has a personal bias or

9 prejudice either against [them] or in favor of any adverse party,” 28 U.S.C. § 144, 10 and the judge determines that recusal is appropriate, United States v. Feldman, 983 11 F.2d 144, 145 (9th Cir. 1992). 12 The standard for recusal under both statutes is the same: “Whether a 13 reasonable person with knowledge of all the facts would conclude that the judge’s 14 impartiality might reasonably be questioned.” United States v. McTiernan, 695 F.3d 15 882, 891 (9th Cir. 2012) (internal quote omitted). This reasonableness standard

16 matches Canon 3C(1) of the Code of Conduct for the United States Judges, which 17 requires that any basis for challenging a judge’s impartiality must be “reasonable” 18 for the judge to be required to recuse. See generally Committee on Codes of Conduct 19 Advisory Opinion No. 103: Disqualification Based on Harassing Claims Against 20 Judge (June 2009). “The factors the judge should consider in making the 21 reasonableness determination [include]… the nature of the complaint, the

22 applicable law, and other relevant circumstances.” Id. 23 1 Here, Murray has cited no grounds on which to question the impartiality of 2 the Court. If Murray intends her reference to “Judge Whitehead’s prior rulings” to

3 refer to this Court’s Order denying her motion for appointment of pro bono counsel, 4 then she falls far short of stating a valid basis for a finding of bias or partiality. “[A] 5 judge’s prior adverse ruling is not sufficient cause for recusal.” United States v. 6 Studley, 783 F.2d 934, 939 (9th Cir. 1986); see also Liteky v. United States, 510 U.S. 7 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a 8 bias or partiality motion.”).

9 As such, this Court DENIES Murray’s motion for recusal and DIRECTS the 10 Clerk of Court to refer this matter to the Chief Judge for review. See LCR 3(f) (“If 11 the challenged judge decides not to voluntarily recuse, he or she will direct the clerk 12 to refer the motion to the chief judge, or the chief judge’s designee.”). 13 3.3 The Court denies Murray’s ex parte motion for a Temporary Restraining Order. 14 The Court turns now to Murray’s motion for injunctive relief. Murray asks 15 the Court to (1) “[o]rder immediate forensic interviews of G.E.M. and C.M.M. by a 16 forensic team accredited by the National Childrens Alliance”; (2) “[p]rohibit the 17 involvement of Defendant Alexander Murray or any federal defendants in the 18 transportation or interaction with minor Plaintiffs during these interviews”; (3) 19 “[a]low Plaintiff Sara Murray to seek necessary psychological and medical 20 assessments of the minor Plaintiffs in Oregon, where she resides”; (4) “[o]rder the 21 immediate and secure temporary placement of minor Plaintiffs G.E.M. and C.M.M. 22 with Plaintiff Sara Murray in Oregon without prior notice to the Defendants”; (5) 23 1 “[t]emporarily place minor Plaintiffs G.E.M. and C.M.M. with Plaintiff Sara Murray 2 in Oregon”; and (6) “[i]ssue an injunction prohibiting any retaliatory actions by the

3 Court, Defendants, or any associated parties against Plaintiff Sara Murray and her 4 children related to the filing of this Motion.” Dkt. No. 35 at 24-25. Because 5 Defendants have not yet been appeared in this case, the Court interprets Murray’s 6 application as seeking a Temporary Restraining Order (TRO), not a preliminary 7 injunction. See Fed. R. Civ. P. 65(a)(1) (“The court may issue a preliminary 8 injunction only on notice to the adverse party.”).

9 “Motions for temporary restraining orders without notice to and an 10 opportunity to be heard by the adverse party are disfavored and will rarely be 11 granted.” LCR 65(b). Under Rule 65 of the Federal Rules of Civil Procedure, the 12 court may issue a temporary restraining order without notice to the adverse party 13 only if (A) “specific facts in an affidavit or a verified complaint clearly show that 14 immediate and irreparable injury, loss, or damage will result to the movant before 15 the adverse party can be heard in opposition”; and (B) “the movant's attorney

16 certifies in writing any efforts made to give notice and the reasons why it should not 17 be required.” Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed ... by Rule 18 65 on the availability of ex parte temporary restraining orders reflect the fact that 19 our entire jurisprudence runs counter to the notion of court action taken before 20 reasonable notice and an opportunity to be heard has been granted both sides of a 21 dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc.

22 No. 70, 415 U.S. 423, 438-439 (1974). In addition to the irreparable injury and 23 certification of notice requirements, courts also consider the likelihood of success on 1 the merits before issuing a TRO. See N. Stevedoring & Handling Corp. v. ILWU, 2 Loc. No. 60, 685 F.2d 344, 347 (9th Cir. 1982) (holding that temporary restraining

3 orders may be appealed under 28 U.S.C. § 1292(a)(1) because they “can be as 4 dispositive of the merits as a preliminary injunction.”). 5 Murray has not satisfied Rule 65’s procedural requirements for obtaining a 6 temporary restraining order. She has not filed an affidavit or verified complaint 7 showing the irreparable harm that will result from denial of immediate injunctive 8 relief. She has not certified in writing any attempts to give notice of the requested

9 relief to the adverse parties. Nor has she offered reasons why such notice should not 10 be required for any or all of the 37 defendants listed in her complaint. Further, and 11 just as decisively, Murray has yet to demonstrate a likelihood of success on the 12 merits. See Dkt. No. 34 at 10 (discussing deficiencies in the operative complaint). 13 Murray asks for federal court intervention into state family court proceedings, yet 14 meets none of the substantive or procedural requirements necessary to warrant 15 such extraordinary relief. As such, this Court DENIES Murray’s emergency motion

16 for preliminary injunctive relief. 17 3.4 The Court denies Murray’s motion to file under seal. 18 Finally, the Court turns to Murray’s motion for “permission to file the 19 forensic report detailing abuse of the minor Plaintiff, C.M.M., under seal.” Dkt. No. 20 35 at 26. Murray asserts that this forensic report “contains highly sensitive and 21 detailed information regarding the alleged abuse suffered by the minor, C.M.M.” 22 and that “[d]isclosure of this information in the public record could cause significant 23 1 harm to the minor’s privacy, emotional well-being, and development.” Id. Murray 2 further asserts that “[s]ealing the document is necessary to protect privacy and

3 prevent further harm or retaliation against Plaintiffs.” Id. 4 The Court will not reach the merits of Murray’s argument at this time. Under 5 Local Civil Rule 5(g)(3), a motion to seal a document must include a “certification 6 that the party has met and conferred with all other parties in an attempt to reach 7 agreement on the need to file the document under seal, to minimize the amount of 8 material filed under seal, and to explore redaction and other alternatives to filing

9 under seal[.]” Murray includes no such certification with her motion for permission 10 to seal. Nor could she, as Defendants have not been served with the Complaint and 11 therefore have not yet appeared in this litigation. As discussed above, “our entire 12 jurisprudence runs counter to the notion of court action taken before reasonable 13 notice and an opportunity to be heard has been granted both sides of a dispute.” 14 Granny Goose Foods, Inc, 415 U.S. at 439 (1974). The proper time to raise this 15 motion for permission to file a sealed document would be after Defendants have

16 appeared, and the parties have met and conferred about the need to file the 17 document at-issue under seal. 18 Therefore, Murray’s motion to file the forensic report of C.M.M. under seal is 19 DENIED WITHOUT PREJUDICE. 20 4. CONCLUSION 21 In sum, the Court orders as follows:

22 4.1 The Court GRANTS Murray’s motion for reconsideration and 23 DIRECTS the District’s Coordinator of the Pro Bono Panel to try to 1 identify an attorney(s) or law firm from the Pro Bono Panel to

9 represent Murray. Consequently, the Court STRIKES the September 3 12 filing deadline for Murray’s fourth amended complaint, see Dkt. No.

A 35, so that potential new counsel has time to work with Murray on

5 succinctly presenting her claims to the Court.

G 4.2. The Court DENIES Murray’s motion to recuse Judge Whitehead and

7 DIRECTS the Clerk of Court to refer this matter to the Chief Judge for

8 review.

9 4.3. The Court DENIES Murray’s motion for injunctive relief.

10 4.4 The Court DENIES without prejudice Murray’s motion for permission 11 to file the named report under seal.

12 It is so ORDERED.

13 Dated this 11th day of September, 2024.

14 fun 0 16 JamalN. Whitehead 17 United States District Judge

18 19 20 21 22 23