Payne v. Department of Social and Health Services

• Court: District Court, W.D. Washington
• Decided: December 10, 2020
• Docket: 3:20-cv-05950
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JEFFREY PAYNE, CASE NO. 3:20-cv-05950-RJB-JRC 11 Plaintiff, ORDER DENYING MOTION TO 12 v. APPOINT COUNSEL AND GRANTING EXTENSION 13 DEPARTMENT OF SOCIAL AND HEALTH SERVICES, et al., 14 Defendants. 15 16 This matter has been referred to the undersigned by the District Court. Dkt. 10. The case 17 is before the Court on plaintiff’s motions for appointment of counsel (Dkt. 9) and for an 18 extension of time in which to file his reply in support of the motion. Dkt. 14. For the reasons 19 discussed below, the motion for appointment of counsel is denied, and the motion for an 20 extension is granted. 21 BACKGROUND 22 In August 2020, plaintiff brought suit in state court against the Washington State 23 Department of Social and Health Services; the Special Commitment Center (“SCC”); former 24 1 SCC CEOs Henry Richards, William Van Hook, and Sjan Talbot; and current SCC CEO David 2 Flynn. Dkt. 1-1, at 3. Plaintiff asserts that the wages paid to SCC detainees are less than the 3 federal minimum wage and that this violates equal protection and due process and constitutes 4 unjust enrichment under Washington State law. Dkt. 1-1, at 4–5, 10–13. Plaintiff alleges that

5 other, similarly situated detainees at different institutions are paid at least federal minimum 6 wage. See Dkt. 1-1, at 10. Plaintiff requests declaratory and injunctive relief and damages in the 7 form of back pay. Dkt. 1-1, at 14. 8 Defendants removed the matter to federal court. Dkt. 1. Plaintiff then filed a motion for 9 appointment of counsel. Dkt. 9. 10 The Court takes judicial notice that plaintiff is also a plaintiff in another pending case in 11 this Court, Anderson et al. v. Cheryl Strange et al., 3:19-cv-05574-RJB-JRC (“Anderson”). In 12 Anderson, plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983 on their claims 13 that the discrepancy in detainees’ pay between the SCC and other Washington State institutions 14 violates Equal Protection. Anderson, Dkt. 59, at 10–11.

15 DISCUSSION 16 There is no right to the appointment of counsel in a § 1983 action, and a court will 17 appoint counsel only in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 18 1331 (9th Cir. 1986). In determining whether exceptional circumstances exist, the Court looks to 19 both plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues 20 involved and the likelihood of success on the merits. Id. 21 Regarding the likelihood of success on the merits, plaintiff relies on the Court’s 22 appointment of counsel in Anderson. See Dkt. 9, at 7. Plaintiff argues that his equal protection 23 claim related to the difference between wages paid to SCC detainees and to detainees at other

24 1 institutions is similar enough to the claims in Anderson that he should be granted counsel in this 2 matter, too. Dkt. 9, at 8. To the extent that his claims are duplicative of claims in Anderson, 3 however, plaintiff has little likelihood of success on the merits of duplicative litigation. See, e.g., 4 Adams v. California Dep’t of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007) (approving of

5 dismissal with prejudice of lawsuit that was duplicative with another lawsuit pending in a district 6 court), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 7 Otherwise, plaintiff’s federal claims appear to have little likelihood of success on the 8 merits. Plaintiff’s claims for damages for constitutional violations, whether brought against the 9 state or officials in their individual or official capacities as presently alleged are unlikely to 10 succeed on the merits. See Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 11 1997) (noting that states, state entities, and state officials sued in their official capacities are not 12 subject to suit under § 1983). Plaintiff seeks to hold individual defendants liable for damages on 13 the basis of “respondeat superior,” which is inadequate under § 1983. See Dkt. 1-1, at 3; Monell 14 v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 n.58 (1978). And regarding plaintiff’s

15 claims for prospective injunctive relief, such claims are only viable against state officials who 16 have connection with the enforcement of the allegedly unconstitutional policy or statute. See, 17 e.g., Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999). The 18 complaint fails to adequately explain why the named current and former SCC CEOs are persons 19 who may be subject to liability. Compare Anderson, Dkt. 59 (naming the Secretary of DSHS as 20 defendant). 21 The Court notes that plaintiff disavows that he seeks to proceed under § 1983. See Dkt. 22 9, at 2. Having reviewed plaintiff’s complaint, the Court finds that plaintiff has not brought 23 claims under any other federal law on which he would have a likelihood of success. Instead,

24 1 plaintiff appears to seek to recharacterize his complaint as a non-§ 1983 complaint but has not 2 explained the basis for such a claim. 3 Further, although plaintiff cites reasons why he needs assistance, the Court does not find 4 that these reasons are exceptional circumstances in light of the failure to demonstrate an apparent

5 likelihood of success on the merits. Because plaintiff fails to show the exceptional 6 circumstances justifying the appointment of counsel, the Court does not reach the parties’ 7 arguments regarding whether plaintiff qualifies financially. The motion for appointment of 8 counsel (Dkt. 9) is denied. 9 Plaintiff requests that the Court consider his late-filed reply in support of his motion for 10 counsel as timely. Dkt. 14, at 1. The Court grants the request (Dkt. 14) and has considered the 11 reply when ruling on the motion for appointment of counsel. 12 Dated this 10th day of December, 2020. 13

14 A 15 J. Richard Creatura 16 United States Magistrate Judge

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