Rogers v. Weaver

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RAY C. ROGERS, CASE NO. 2:23-cv-01160-JCC-GJL 11 Plaintiff, v. ORDER DIRECTING 12 ADDITIONAL FILINGS RANDY WEAVER, REGARDING MOTION TO 13 APPOINT COUNSEL Defendant. 14

15 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 16 Judge Grady J. Leupold. Currently pending before the Court is Plaintiff Ray C. Rogers’ Motion 17 for Appointment of Counsel. Dkt. 107. As explained below, Plaintiff is DIRECTED to file a 18 declaration in accordance with the Court’s Plan for Representation of Pro Se Litigants in Civil 19 Rights Actions, General Order 07-23, not later than October 28, 2024; Plaintiff MAY also file a 20 supplemental brief in support of his Motion at that time. Defendant Weaver MUST RESPOND 21 to the instant Motion not later than November 4, 2024, and Plaintiff MAY file a reply in support 22 of his Motion not later than November 12, 2024. 23 // 24 1 I. DISCUSSION 2 There is no constitutional right to court-appointed counsel in § 1983 actions. Storseth v. 3 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); United States v. $292,888.04 in U.S. Currency, 4 54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under this section is discretionary,

5 not mandatory.”). And district courts lack authority to require counsel to represent indigent 6 prisoners in such cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). 7 Nonetheless, a district court may request that an attorney voluntarily represent an indigent 8 plaintiff but only in “exceptional circumstances.” See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 9 935 F.2d 1015, 1017 (9th Cir. 1991); Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), 10 overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 11 This Court’s plan and procedures for requesting pro bono representation in prisoner civil 12 rights actions is outlined in General Order 07-23 (effective Jan. 1, 2024). Under the Court’s plan, 13 pro se plaintiffs must submit the following when seeking appointment of voluntary counsel in 14 civil rights actions:

15 [Section 3] (b) Motion and Declaration of Pro Se Litigant. Any motion for the appointment of counsel by a party appearing pro se in a civil rights action shall 16 include a declaration stating the party’s efforts to obtain counsel by means other than appointment, including having connected with at least two other attorneys 17 without securing representation, and identifying any prior pro bono appointments of counsel to represent the party in cases brought in this Court, including both 18 pending and previously terminated actions. The declaration should further state whether the pro se litigant has already pursued another action, such as a wage claim 19 or agency claim, before proceeding with their federal action. A completed copy of a declaration stating the movant cannot afford to hire an attorney shall be attached 20 to the motion. 21 Id. at 5. As the current record lacks the required declaration, the Court is unable to appoint 22 voluntary counsel even if it were to determine such an appointment was warranted at this time. 23 // 24 1 II. CONCLUSION 2 Accordingly, Plaintiff is hereby DIRECTED to submit a declaration in accordance with 3 Section 3(b) of General Order 07-23 not later than October 28, 2024. As Plaintiff filed his Motion 4 for Appointment of Counsel before the District Court denied Defendant’s Motion for Summary

5 Judgment, he MAY also file a supplemental brief in support of his Motion at that time. Defendant 6 Weaver is DIRECTED to file a response to the instant Motion not later than November 4, 2024. 7 Plaintiff MAY file a reply in support not later than November 12, 2024. 8 The Clerk of Court is DIRECTED to renote Plaintiff’s Motion for Appointment of 9 Counsel (Dkt. 107) for consideration on November 12, 2024. The Clerk is further DIRECTED 10 to send Plaintiff a copy of General Order 07-23 along with a copy of this Order. 11 Dated this 26th day of September, 2024. 12 A 13 14 Grady J. Leupold United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24