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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 REFFERRING CASE TO 12 PRO BONO PANEL RANDY WEAVER, 13 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’s Motion 17 for Appointment of Counsel. Dkt. 107. While Plaintiff’s Motion was pending, the District Court 18 denied Defendant Randy Weaver’s Motion for Summary Judgment. Dkt. 114 (Order Adopting 19 Report and Recommendation). The Court then directed both parties to provide additional 20 information and briefing regarding the propriety of appointing voluntary counsel ahead of trial. 21 See Dkts. 118, 129 (Plaintiff’s Declarations); Dkts. 122, 131 (Defendant’s Responses). In his 22 Responses, Defendant Weaver takes no position on Plaintiff’s request for court-appointed 23 counsel and, instead, “defers to the Court.” Dkt. 131 at 3; see also Dkt. 122. 24 1 Upon review of the relevant record, Plaintiff’s Motion is GRANTED contingent on the 2 Court being able to locate an attorney willing to represent him pro bono in this case. This matter 3 is hereby REFERRED to the Pro Bono Panel to identify an attorney who is available and 4 willing to accept a voluntary appointment in this action. If voluntary pro bono counsel cannot
5 be located within a reasonable time, Plaintiff will be required to proceed to trial pro se. 6 I. DISCUSSION 7 There is no constitutional right to court-appointed counsel in § 1983 actions. Storseth v. 8 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); United States v. $292,888.04 in U.S. Currency, 9 54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under this section is discretionary, 10 not mandatory.”). And district courts lack authority to require counsel to represent indigent 11 prisoners in such cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). 12 Nonetheless, a district court may request that an attorney voluntarily represent an indigent 13 plaintiff but only in “exceptional circumstances.” See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 14 935 F.2d 1015, 1017 (9th Cir. 1991); Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997),
15 overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 16 To decide whether exceptional circumstances exist, the Court must evaluate (1) “the 17 likelihood of success on the merits” and (2) “the ability of the [plaintiff] to articulate his claims 18 pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 19 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). On 20 the second factor, a plaintiff must plead sufficient facts to show he has an insufficient grasp of 21 his case or the legal issues involved and an inadequate ability to articulate the factual basis of his 22 claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 23
24 1 Neither factor is dispositive, “rather they must be considered cumulatively.” See Cano v. Taylor, 2 739 F.3d 1214, 1218 (9th Cir. 2014). 3 Upon a judicial determination that exceptional circumstances warranting the appointment 4 of counsel exist, this Court’s plan and procedures for requesting pro bono representation in
5 prisoner civil rights actions is outlined in General Order 07-23 (effective Jan. 1, 2024). Under the 6 Court’s plan, pro se plaintiffs must submit the following when seeking appointment of voluntary 7 counsel in civil rights actions: 8 [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 9 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 10 without securing representation, and identifying any prior pro bono appointments of counsel to represent the party in cases brought in this Court, including both 11 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 12 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 13 to the motion. 14 Id. at 5. 15 The Court concludes that this action involves exceptional circumstances warranting the 16 appointment of counsel. Following his successful opposition of summary judgment, Plaintiff’s 17 likelihood of success on the merits is high. And, though Plaintiff was able to sufficiently defend 18 his First Amendment retaliation claim at the summary judgment stage, his ability to litigate his 19 claim going forward will heavily rely upon his ability to articulate its factual and legal basis. C.f. 20 Enriquez v. Dep’t of Corr., No. 3:21-cv-00085-ART-CSD, 2024 WL 1747340, at *1 (D. Nev. 21 Apr. 22, 2024) (concluding denial of pro bono counsel to assist pro se prisoner at trial was abuse 22 of discretion); Ramirez v. Gutierrez, No. 20-cv-01109-MMA-BLM, 2022 WL 959647, at *3 23 (S.D. Cal. Mar. 30, 2022) (concluding concerns regarding credibility determinations were 24 premature and did not warrant appointment of counsel before summary judgment). 1 Plaintiff’s filings thus far raise significant doubt that he can effectively do so during live 2 trial proceedings. His legal arguments and discussion of facts, though understandable in writing, 3 lack focus and are frequently presented alongside irrelevant issues and ad hominem attacks. 4 Moreover, because Plaintiff has recently been transferred to a new correctional facility, his
5 efforts will be challenged by a diminished ability to identify potential witnesses to lend further 6 proof to his claim occurring at King County Jail. See Dkt. 130. In addition, the critical factual 7 disputes in this case involve conflicting testimony between Plaintiff, Defendant Weaver, and 8 another correctional officer. See Dkt. 109 at 18; Dkt. 114 at 5–7. As a result, Plaintiff’s ability to 9 articulate the factual basis of his claim to a jury will require effective presentation of his own 10 testimony and cross-examination of witnesses. 11 Alone, these factors would not warrant the appointment of counsel. However, in 12 combination, Plaintiff’s likelihood of success on the merits and his questionable ability to 13 effectively articulate his claims to a jury pro se are exceptional circumstances warranting the 14 appointment of voluntary pro bono counsel ahead of trial.
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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 REFFERRING CASE TO 12 PRO BONO PANEL RANDY WEAVER, 13 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’s Motion 17 for Appointment of Counsel. Dkt. 107. While Plaintiff’s Motion was pending, the District Court 18 denied Defendant Randy Weaver’s Motion for Summary Judgment. Dkt. 114 (Order Adopting 19 Report and Recommendation). The Court then directed both parties to provide additional 20 information and briefing regarding the propriety of appointing voluntary counsel ahead of trial. 21 See Dkts. 118, 129 (Plaintiff’s Declarations); Dkts. 122, 131 (Defendant’s Responses). In his 22 Responses, Defendant Weaver takes no position on Plaintiff’s request for court-appointed 23 counsel and, instead, “defers to the Court.” Dkt. 131 at 3; see also Dkt. 122. 24 1 Upon review of the relevant record, Plaintiff’s Motion is GRANTED contingent on the 2 Court being able to locate an attorney willing to represent him pro bono in this case. This matter 3 is hereby REFERRED to the Pro Bono Panel to identify an attorney who is available and 4 willing to accept a voluntary appointment in this action. If voluntary pro bono counsel cannot
5 be located within a reasonable time, Plaintiff will be required to proceed to trial pro se. 6 I. DISCUSSION 7 There is no constitutional right to court-appointed counsel in § 1983 actions. Storseth v. 8 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); United States v. $292,888.04 in U.S. Currency, 9 54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under this section is discretionary, 10 not mandatory.”). And district courts lack authority to require counsel to represent indigent 11 prisoners in such cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). 12 Nonetheless, a district court may request that an attorney voluntarily represent an indigent 13 plaintiff but only in “exceptional circumstances.” See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 14 935 F.2d 1015, 1017 (9th Cir. 1991); Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997),
15 overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 16 To decide whether exceptional circumstances exist, the Court must evaluate (1) “the 17 likelihood of success on the merits” and (2) “the ability of the [plaintiff] to articulate his claims 18 pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 19 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). On 20 the second factor, a plaintiff must plead sufficient facts to show he has an insufficient grasp of 21 his case or the legal issues involved and an inadequate ability to articulate the factual basis of his 22 claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 23
24 1 Neither factor is dispositive, “rather they must be considered cumulatively.” See Cano v. Taylor, 2 739 F.3d 1214, 1218 (9th Cir. 2014). 3 Upon a judicial determination that exceptional circumstances warranting the appointment 4 of counsel exist, this Court’s plan and procedures for requesting pro bono representation in
5 prisoner civil rights actions is outlined in General Order 07-23 (effective Jan. 1, 2024). Under the 6 Court’s plan, pro se plaintiffs must submit the following when seeking appointment of voluntary 7 counsel in civil rights actions: 8 [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 9 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 10 without securing representation, and identifying any prior pro bono appointments of counsel to represent the party in cases brought in this Court, including both 11 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 12 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 13 to the motion. 14 Id. at 5. 15 The Court concludes that this action involves exceptional circumstances warranting the 16 appointment of counsel. Following his successful opposition of summary judgment, Plaintiff’s 17 likelihood of success on the merits is high. And, though Plaintiff was able to sufficiently defend 18 his First Amendment retaliation claim at the summary judgment stage, his ability to litigate his 19 claim going forward will heavily rely upon his ability to articulate its factual and legal basis. C.f. 20 Enriquez v. Dep’t of Corr., No. 3:21-cv-00085-ART-CSD, 2024 WL 1747340, at *1 (D. Nev. 21 Apr. 22, 2024) (concluding denial of pro bono counsel to assist pro se prisoner at trial was abuse 22 of discretion); Ramirez v. Gutierrez, No. 20-cv-01109-MMA-BLM, 2022 WL 959647, at *3 23 (S.D. Cal. Mar. 30, 2022) (concluding concerns regarding credibility determinations were 24 premature and did not warrant appointment of counsel before summary judgment). 1 Plaintiff’s filings thus far raise significant doubt that he can effectively do so during live 2 trial proceedings. His legal arguments and discussion of facts, though understandable in writing, 3 lack focus and are frequently presented alongside irrelevant issues and ad hominem attacks. 4 Moreover, because Plaintiff has recently been transferred to a new correctional facility, his
5 efforts will be challenged by a diminished ability to identify potential witnesses to lend further 6 proof to his claim occurring at King County Jail. See Dkt. 130. In addition, the critical factual 7 disputes in this case involve conflicting testimony between Plaintiff, Defendant Weaver, and 8 another correctional officer. See Dkt. 109 at 18; Dkt. 114 at 5–7. As a result, Plaintiff’s ability to 9 articulate the factual basis of his claim to a jury will require effective presentation of his own 10 testimony and cross-examination of witnesses. 11 Alone, these factors would not warrant the appointment of counsel. However, in 12 combination, Plaintiff’s likelihood of success on the merits and his questionable ability to 13 effectively articulate his claims to a jury pro se are exceptional circumstances warranting the 14 appointment of voluntary pro bono counsel ahead of trial.
15 Having concluded that exceptional circumstances exist, the Court now examines 16 Plaintiff’s financial eligibility for court-appointed counsel and his efforts to obtain pro bono 17 counsel through other means. See General Order 07-23 (effective Jan. 1, 2024). Plaintiff was 18 granted in forma pauperis status in this action, and a recent copy of his Prison Trust Account 19 Statement demonstrates his continued indigency. See Dkt. 129 at 6 ($12.37 account balance as of 20 Nov. 5, 2024). Next, in sworn Declarations, Plaintiff states that he sought pro bono 21 representation in this case (and in other cases filed before this Court) from Columbia Legal 22 Services, Northwest Justice Project, Connelly Law Offices, and the Federal Bar Association for 23 the Western District of Washington. Dkts. 118, 129. None of the organizations Plaintiff
24 1 contacted agreed to provide pro bono representation. See Dkt. 118 at 8–12 (Letters Declining 2 Representation). Finally, Plaintiff states that he has not received pro bono representation in a 3 prior legal action. Dkt. 129 at 2. 4 Based on the above, the Court finds that Plaintiff is unable to afford counsel on his own
5 and his thus financially eligible for pro bono representation. The Court further finds that Plaintiff 6 has attempted, without success, to obtain pro bono representation through means other than court 7 appointment. Therefore, the Court concludes that Plaintiff has substantially complied with the 8 requirements for obtaining appointment of voluntary counsel set forth in Section 3(b) of General 9 Order 07-23. 10 II. CONCLUSION 11 Accordingly, Plaintiff’s Motion for Appointment of Counsel (Dkt. 107) is GRANTED 12 contingent on the Court being able to locate an attorney willing to represent him pro bono in this 13 matter. This matter is hereby REFERRED to the Pro Bono Panel to identify an attorney who is 14 available and willing to accept a voluntary appointment in this action. The Clerk SHALL identify
15 an attorney or law firm from the Court’s Pro Bono Panel to represent Plaintiff in this case. The 16 scope of the engagement will ultimately be between the attorney accepting voluntary appointment 17 and the client (Plaintiff). 18 Plaintiff is ADVISED that the Court cannot force any attorney to accept a pro bono 19 appointment in this case. Plaintiff is further ADVISED that it is possible that a pro bono attorney 20 will not be found and, if so, he will remain unrepresented. If the Court cannot locate an attorney 21 who is willing to provide representation within a reasonable time, the parties will be notified by a 22 // 23 //
24 1 minute entry for the electronic docket, stating that the inquiry was unsuccessful and that Plaintiff 2 will be required to continue in this action pro se. 3 Dated this 7th day of January, 2025. 4 A 5 6 Grady J. Leupold United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23