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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 BRANDON J. RUBIO, 9 Plaintiff, Case No. C23-5435-JLR-SKV 10 v. ORDER RE: MOTION TO APPOINT COUNSEL AND DISCOVERY 11 MASON COUNTY, et al., REQUEST 12 Defendants. 13
14 Plaintiff proceeds pro se and in forma pauperis (IFP) in this 42 U.S.C. § 1983 civil rights 15 action relating to his confinement at Mason County Jail (MCJ) and Nisqually Corrections Center 16 (NCC). Plaintiff filed a Motion for Appointment of Counsel, Dkt. 35, and a Second Request for 17 Production of Documents, Dkt. 36. Having now considered these filings, the Court finds as 18 follows: 19 (1) There is no right to have counsel appointed in cases brought under § 1983. 20 Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party 21 proceeding IFP, it may do so only upon a showing of exceptional circumstances. Wilborn v. 22 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of exceptional circumstances 23 requires an evaluation of both the likelihood of success on the merits and the ability of the 1 individual to articulate his claims pro se in light of the complexity of the legal issues involved. 2 Id. 3 Plaintiff filed the pending Motion for Appointment of Counsel two weeks after the Court 4 issued an Order denying two prior motions seeking the appointment of counsel. See Dkts. 24,
5 27, 34-35. As in the prior motions, Plaintiff asserts his belief that his claims are complex and 6 meritorious, states that his imprisonment will greatly limit his ability to litigate, notes that he has 7 limited access to the law library and limited knowledge of the law, and describes his extensive, 8 but unsuccessful efforts to obtain counsel. See Dkt. 35. Plaintiff also asserts that the United 9 States Attorney’s Office has initiated an investigation into his claim of violations of the 10 Americans With Disabilities Act and that that investigation demonstrates the meritorious nature 11 of his allegations in the current matter. Id. 12 The Court, however, continues to find that the record in this case is not sufficiently 13 developed enough for the Court to make a determination as to either the likelihood of success on 14 the merits or Plaintiff’s ability to articulate his claims pro se. For example, and as discussed in a
15 recent Order, only some of the individuals named as Defendants in this matter have appeared and 16 the Court is awaiting information that will allow it to resolve questions associated with other 17 individuals’ employment status, service on those individuals, and any legal representation they 18 may have. Dkt. 38. The Court is also awaiting the completion of briefing on Plaintiff’s pending 19 motion seeking preliminary injunctive relief. See id. Based on the information available at this 20 juncture, the Court again concludes Plaintiff has not demonstrated his case involves exceptional 21 circumstances warranting the appointment of counsel. Plaintiff’s Motion for Appointment of 22 Counsel, Dkt. 35, is therefore DENIED. The denial is without prejudice to renewal of the 23 1 request at a later date. Plaintiff is, however, directed to refrain from renewing his request for the 2 appointment of counsel until this matter is sufficiently developed. 3 (2) Plaintiff also filed a Second Request for Production of Documents. Dkt. 36. He 4 describes the records he is seeking from MCJ and NCC. Id. He asserts his good faith effort to
5 obtain this discovery and, in support, provides a letter directed to an MCJ employee and 6 discussing his attempt to obtain records from MCJ employees, as well as an exception to a rule 7 requiring that he pay for copies of such records. Id. He asks for the Court’s intervention given 8 his good faith efforts to obtain discovery under Federal Rule of Civil Procedure 37(a)(1). Id. 9 The Court has, on two prior occasions, addressed Plaintiff’s requests for assistance in 10 relation to discovery, Dkts. 18 & 30, and herein again advises Plaintiff as to the relevant rules. 11 In general, discovery should be conducted between the parties and a party should not seek 12 judicial intervention unless the parties reach a disagreement they cannot resolve on their own. 13 The Court will not hear a motion to compel discovery until the moving party has met and 14 conferred with opposing counsel or made a good faith effort to do so. Fed. R. Civ. P. 37(a)(1);
15 Local Civil Rule (LCR) 37(a)(1). “The motion must include a certification that the movant has 16 in good faith conferred or attempted to confer with the person or party failing to make disclosure 17 or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). “The 18 certification must list the date, manner, and participants to the conference.” LCR 37(a)(1). A 19 good faith effort to confer requires a face-to-face meeting or telephone conference. Id. 20 The Court also advises Plaintiff of his obligations in relation to discovery as a party 21 proceeding pro se and IFP. Pro se litigants remain bound by the rules of procedure. Ghazali v. 22 Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th 23 Cir. 1987)). Also, while the IFP statute waives the filing fee for an indigent prisoner’s civil 1 rights complaint, see 28 U.S.C. § 1915, it does not require the financing of the entire action or 2 waiver of fees or expenses for discovery. The party requesting discovery bears the burden of the 3 costs for that discovery. See Lewis v. Casey, 518 U.S. 343, 384 (1996) (an inmate’s 4 constitutional right of access to the courts does not impose “an affirmative obligation on the
5 states to finance and support prisoner litigation”); Matthews v. Puckett, No. 15-17484, 2016 WL 6 6872933, at * 1 (9th Cir. Nov. 22, 2016) (pro se state prisoner proceeding IFP “must bear his 7 own discovery costs”); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (expenditure of 8 public funds on indigent litigants’ discovery fees not authorized by Congress). 9 Plaintiff here shows that he requested MCJ provide him with documentation and waive 10 fees associated with producing that documentation. He does not show he made any attempt to 11 engage with counsel for represented Defendants in relation to discovery. See Dkt. 36. 12 Moreover, because there are a number of Defendants who have yet to appear in this matter, at 13 least some of Plaintiff’s discovery-related requests are premature. The Court, for these reasons, 14 DENIES the requests for relief contained in Plaintiff’s Second Request for Production of
15 Documents. Dkt. 36. The Court further advises Plaintiff to properly engage in discovery with 16 counsel for Defendants before seeking assistance from the Court.
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 BRANDON J. RUBIO, 9 Plaintiff, Case No. C23-5435-JLR-SKV 10 v. ORDER RE: MOTION TO APPOINT COUNSEL AND DISCOVERY 11 MASON COUNTY, et al., REQUEST 12 Defendants. 13
14 Plaintiff proceeds pro se and in forma pauperis (IFP) in this 42 U.S.C. § 1983 civil rights 15 action relating to his confinement at Mason County Jail (MCJ) and Nisqually Corrections Center 16 (NCC). Plaintiff filed a Motion for Appointment of Counsel, Dkt. 35, and a Second Request for 17 Production of Documents, Dkt. 36. Having now considered these filings, the Court finds as 18 follows: 19 (1) There is no right to have counsel appointed in cases brought under § 1983. 20 Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party 21 proceeding IFP, it may do so only upon a showing of exceptional circumstances. Wilborn v. 22 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of exceptional circumstances 23 requires an evaluation of both the likelihood of success on the merits and the ability of the 1 individual to articulate his claims pro se in light of the complexity of the legal issues involved. 2 Id. 3 Plaintiff filed the pending Motion for Appointment of Counsel two weeks after the Court 4 issued an Order denying two prior motions seeking the appointment of counsel. See Dkts. 24,
5 27, 34-35. As in the prior motions, Plaintiff asserts his belief that his claims are complex and 6 meritorious, states that his imprisonment will greatly limit his ability to litigate, notes that he has 7 limited access to the law library and limited knowledge of the law, and describes his extensive, 8 but unsuccessful efforts to obtain counsel. See Dkt. 35. Plaintiff also asserts that the United 9 States Attorney’s Office has initiated an investigation into his claim of violations of the 10 Americans With Disabilities Act and that that investigation demonstrates the meritorious nature 11 of his allegations in the current matter. Id. 12 The Court, however, continues to find that the record in this case is not sufficiently 13 developed enough for the Court to make a determination as to either the likelihood of success on 14 the merits or Plaintiff’s ability to articulate his claims pro se. For example, and as discussed in a
15 recent Order, only some of the individuals named as Defendants in this matter have appeared and 16 the Court is awaiting information that will allow it to resolve questions associated with other 17 individuals’ employment status, service on those individuals, and any legal representation they 18 may have. Dkt. 38. The Court is also awaiting the completion of briefing on Plaintiff’s pending 19 motion seeking preliminary injunctive relief. See id. Based on the information available at this 20 juncture, the Court again concludes Plaintiff has not demonstrated his case involves exceptional 21 circumstances warranting the appointment of counsel. Plaintiff’s Motion for Appointment of 22 Counsel, Dkt. 35, is therefore DENIED. The denial is without prejudice to renewal of the 23 1 request at a later date. Plaintiff is, however, directed to refrain from renewing his request for the 2 appointment of counsel until this matter is sufficiently developed. 3 (2) Plaintiff also filed a Second Request for Production of Documents. Dkt. 36. He 4 describes the records he is seeking from MCJ and NCC. Id. He asserts his good faith effort to
5 obtain this discovery and, in support, provides a letter directed to an MCJ employee and 6 discussing his attempt to obtain records from MCJ employees, as well as an exception to a rule 7 requiring that he pay for copies of such records. Id. He asks for the Court’s intervention given 8 his good faith efforts to obtain discovery under Federal Rule of Civil Procedure 37(a)(1). Id. 9 The Court has, on two prior occasions, addressed Plaintiff’s requests for assistance in 10 relation to discovery, Dkts. 18 & 30, and herein again advises Plaintiff as to the relevant rules. 11 In general, discovery should be conducted between the parties and a party should not seek 12 judicial intervention unless the parties reach a disagreement they cannot resolve on their own. 13 The Court will not hear a motion to compel discovery until the moving party has met and 14 conferred with opposing counsel or made a good faith effort to do so. Fed. R. Civ. P. 37(a)(1);
15 Local Civil Rule (LCR) 37(a)(1). “The motion must include a certification that the movant has 16 in good faith conferred or attempted to confer with the person or party failing to make disclosure 17 or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). “The 18 certification must list the date, manner, and participants to the conference.” LCR 37(a)(1). A 19 good faith effort to confer requires a face-to-face meeting or telephone conference. Id. 20 The Court also advises Plaintiff of his obligations in relation to discovery as a party 21 proceeding pro se and IFP. Pro se litigants remain bound by the rules of procedure. Ghazali v. 22 Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th 23 Cir. 1987)). Also, while the IFP statute waives the filing fee for an indigent prisoner’s civil 1 rights complaint, see 28 U.S.C. § 1915, it does not require the financing of the entire action or 2 waiver of fees or expenses for discovery. The party requesting discovery bears the burden of the 3 costs for that discovery. See Lewis v. Casey, 518 U.S. 343, 384 (1996) (an inmate’s 4 constitutional right of access to the courts does not impose “an affirmative obligation on the
5 states to finance and support prisoner litigation”); Matthews v. Puckett, No. 15-17484, 2016 WL 6 6872933, at * 1 (9th Cir. Nov. 22, 2016) (pro se state prisoner proceeding IFP “must bear his 7 own discovery costs”); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (expenditure of 8 public funds on indigent litigants’ discovery fees not authorized by Congress). 9 Plaintiff here shows that he requested MCJ provide him with documentation and waive 10 fees associated with producing that documentation. He does not show he made any attempt to 11 engage with counsel for represented Defendants in relation to discovery. See Dkt. 36. 12 Moreover, because there are a number of Defendants who have yet to appear in this matter, at 13 least some of Plaintiff’s discovery-related requests are premature. The Court, for these reasons, 14 DENIES the requests for relief contained in Plaintiff’s Second Request for Production of
15 Documents. Dkt. 36. The Court further advises Plaintiff to properly engage in discovery with 16 counsel for Defendants before seeking assistance from the Court. 17 (3) The Court, finally, takes this opportunity to address Plaintiff’s request for a copy 18 of his Amended Complaint. Dkt. 23. The Clerk’s Office is directed to satisfy this request by 19 sending Plaintiff a copy of his Amended Complaint, Dkt. 20.1 20 (4) The Clerk is also directed to send copies of this Order to the parties and to the 21 / / / 22
23 1 It appears that the Clerk’s Office satisfied an earlier-filed request for a copy of the original proposed complaint, see docket entry dated October 5, 2023, but there is no indication of whether Plaintiff was sent a copy of his Amended Complaint. 1 Honorable James L. Robart. 2 Dated this 18th day of January, 2024. 3 A 4 S. KATE VAUGHAN United States Magistrate Judge 5 6
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