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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CARLOS WILLIAMS, CASE NO. C21-5536 MJP 11 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 12 v. AND MOTION AGAINST WITHDRAWAL OF COUNSEL 13 LORI LAWSON, et al., 14 Defendants. 15 16 This matter comes before the Court on Plaintiff’s Motion for Appointment of Counsel 17 (Dkt. No. 83) and Motion Against Unopposed Motion for Leave to Withdraw as Counsel (Dkt. 18 No. 93). Having reviewed both Motions, Defendants’ responses (Dkt. Nos. 99, 117), and all 19 supporting materials, the Court DENIES both Motions. 20 BACKGROUND 21 The Court previously granted Plaintiff’s Court-appointed counsel’s unopposed Motion to 22 Withdraw. (Order Granting Motion to Withdraw (Dkt. No. 82).) Plaintiff did not file any 23 opposition or response to his former counsel’s motion in the two-week period between when 24 1 counsel filed the motion and the Court’s Order. Two weeks after the Court approved counsel’s 2 withdrawal, Plaintiff filed his Motion for Appointment of Counsel, recognizing that the Court 3 had allowed his counsel to withdraw. (Dkt. No. 83.) Roughly one week later, Plaintiff filed his 4 opposition to his counsel’s withdrawal. (Dkt. No. 93.) Based on a date listed on the brief, it
5 appears that Plaintiff may have drafted his opposition on February 6, 2023, which is roughly one 6 week before the Court ruled on the Motion to Withdraw. (Id.) And Plaintiff has alleged that 7 during some portion of February, he was unable to file materials with the Court. (See Dkt. Nos. 8 87, 88, 89, 106, 111.) 9 ANALYSIS 10 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust 11 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). And federal courts lack the 12 authority “to make coercive appointments of counsel.” Mallard v. United States District Court, 13 490 U.S. 296, 310 (1989). But districts courts have two sources of discretion to appoint counsel 14 in a civil proceeding. First, if the district court finds “exceptional circumstances, it may request
15 appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). See Agyeman v. 16 Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of the exceptional 17 circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood 18 of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his 19 claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. 20 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 21 1017 (9th Cir. 1991). Second, district courts have inherent authority to appoint counsel in civil 22 proceedings when necessary to aid the court in its judicial function. See Perez v. Barr, 957 F.3d 23 958, 965 (9th Cir. 2020) “It has long been recognized that courts have the inherent authority to
24 1 appoint counsel when necessary to the exercise of their judicial function, even absent express 2 statutory authorization.” Id. “‘Courts have (at least in the absence of legislation to the contrary) 3 inherent power to provide themselves with appropriate instruments required for the performance 4 of their duties [and t]his power includes authority to appoint persons unconnected with the court
5 to aid judges in the performance of specific judicial duties, as they may arise in the progress of a 6 cause.’” Id. (quoting Ex Parte Peterson, 253 U.S. 300, 312 (1920) (citation omitted)). “This 7 inherent judicial authority has been codified in the All Writs Act, which provides that ‘[t]he 8 Supreme Court and all courts established by Act of Congress may issue all writs necessary or 9 appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of 10 law.’” Id. (quoting 28 U.S.C. § 1651(a)). 11 The Court previously found that it was necessary and appropriate to appoint counsel to 12 assist in a meaningful review of the claims Plaintiff presents. (Order Granting Motion for 13 Appointment of Counsel at 3-4 (Dkt. No. 54).) Despite the appointment of highly qualified 14 counsel, Plaintiff was unable to work cooperatively to assist in the litigation and his actions
15 rendered the representation “unreasonably difficult.” (See Mot. to Withdraw at 2 (Dkt. No. 79).) 16 While the Court believes that counsel could provide useful assistance to Plaintiff and the Court, 17 it does not find that appointment of different counsel to be a proper use of the Court’ authority to 18 advance this litigation. The Court has considerable doubt as to whether Plaintiff could work 19 cooperatively with additional counsel, even assuming an attorney was willing to provide pro 20 bono representation. The Court also notes that since withdrawal of his counsel, Plaintiff has 21 demonstrated an ability to file motions and communicate his concerns to the Court. Based on this 22 record, the Court DENIES the Motion for Appointment. 23
24 1 Separately, the Court DENIES Plaintiff’s Opposition to Counsel’s Withdrawal. (Dkt. No. 2 93.) The Court construes this as a timely objection to the Motion to Withdraw, given Plaintiff’s 3 allegations concerning his lack of access to the Courts, lack of notice of the Motion to Withdraw 4 (see Dkt. No. 93 at 4), and the date written on the Opposition, and to address the issue on its
5 merits. Although the Court acknowledges Plaintiff’s concerns about the timing of his counsel’s 6 withdrawal, the Court finds no basis advanced in his briefing that would alter its decision that 7 withdrawal was appropriate. None of the briefing contradicts his former counsel’s assertions that 8 the representation was no longer possible under the Rules of Professional Conduct. As such, the 9 Court does not reconsider its Order permitting the withdrawal. 10 The Court separately finds that the trial date and interim deadlines should be adjusted to 11 allow Plaintiff additional time to prepare this matter, now that he is proceeding pro se (without 12 counsel). The Court hereby AMENDS the case schedule as follows: 13 Case Event Existing Deadline New Deadline 14 JURY TRIAL DATE October 10, 2023 December 11, 2023
15 at 9:00 AM 16 Reports from expert witness March 14, 2023 May 15, 2023 under FRCP 26
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CARLOS WILLIAMS, CASE NO. C21-5536 MJP 11 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 12 v. AND MOTION AGAINST WITHDRAWAL OF COUNSEL 13 LORI LAWSON, et al., 14 Defendants. 15 16 This matter comes before the Court on Plaintiff’s Motion for Appointment of Counsel 17 (Dkt. No. 83) and Motion Against Unopposed Motion for Leave to Withdraw as Counsel (Dkt. 18 No. 93). Having reviewed both Motions, Defendants’ responses (Dkt. Nos. 99, 117), and all 19 supporting materials, the Court DENIES both Motions. 20 BACKGROUND 21 The Court previously granted Plaintiff’s Court-appointed counsel’s unopposed Motion to 22 Withdraw. (Order Granting Motion to Withdraw (Dkt. No. 82).) Plaintiff did not file any 23 opposition or response to his former counsel’s motion in the two-week period between when 24 1 counsel filed the motion and the Court’s Order. Two weeks after the Court approved counsel’s 2 withdrawal, Plaintiff filed his Motion for Appointment of Counsel, recognizing that the Court 3 had allowed his counsel to withdraw. (Dkt. No. 83.) Roughly one week later, Plaintiff filed his 4 opposition to his counsel’s withdrawal. (Dkt. No. 93.) Based on a date listed on the brief, it
5 appears that Plaintiff may have drafted his opposition on February 6, 2023, which is roughly one 6 week before the Court ruled on the Motion to Withdraw. (Id.) And Plaintiff has alleged that 7 during some portion of February, he was unable to file materials with the Court. (See Dkt. Nos. 8 87, 88, 89, 106, 111.) 9 ANALYSIS 10 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust 11 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). And federal courts lack the 12 authority “to make coercive appointments of counsel.” Mallard v. United States District Court, 13 490 U.S. 296, 310 (1989). But districts courts have two sources of discretion to appoint counsel 14 in a civil proceeding. First, if the district court finds “exceptional circumstances, it may request
15 appointment of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). See Agyeman v. 16 Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of the exceptional 17 circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood 18 of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his 19 claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. 20 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 21 1017 (9th Cir. 1991). Second, district courts have inherent authority to appoint counsel in civil 22 proceedings when necessary to aid the court in its judicial function. See Perez v. Barr, 957 F.3d 23 958, 965 (9th Cir. 2020) “It has long been recognized that courts have the inherent authority to
24 1 appoint counsel when necessary to the exercise of their judicial function, even absent express 2 statutory authorization.” Id. “‘Courts have (at least in the absence of legislation to the contrary) 3 inherent power to provide themselves with appropriate instruments required for the performance 4 of their duties [and t]his power includes authority to appoint persons unconnected with the court
5 to aid judges in the performance of specific judicial duties, as they may arise in the progress of a 6 cause.’” Id. (quoting Ex Parte Peterson, 253 U.S. 300, 312 (1920) (citation omitted)). “This 7 inherent judicial authority has been codified in the All Writs Act, which provides that ‘[t]he 8 Supreme Court and all courts established by Act of Congress may issue all writs necessary or 9 appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of 10 law.’” Id. (quoting 28 U.S.C. § 1651(a)). 11 The Court previously found that it was necessary and appropriate to appoint counsel to 12 assist in a meaningful review of the claims Plaintiff presents. (Order Granting Motion for 13 Appointment of Counsel at 3-4 (Dkt. No. 54).) Despite the appointment of highly qualified 14 counsel, Plaintiff was unable to work cooperatively to assist in the litigation and his actions
15 rendered the representation “unreasonably difficult.” (See Mot. to Withdraw at 2 (Dkt. No. 79).) 16 While the Court believes that counsel could provide useful assistance to Plaintiff and the Court, 17 it does not find that appointment of different counsel to be a proper use of the Court’ authority to 18 advance this litigation. The Court has considerable doubt as to whether Plaintiff could work 19 cooperatively with additional counsel, even assuming an attorney was willing to provide pro 20 bono representation. The Court also notes that since withdrawal of his counsel, Plaintiff has 21 demonstrated an ability to file motions and communicate his concerns to the Court. Based on this 22 record, the Court DENIES the Motion for Appointment. 23
24 1 Separately, the Court DENIES Plaintiff’s Opposition to Counsel’s Withdrawal. (Dkt. No. 2 93.) The Court construes this as a timely objection to the Motion to Withdraw, given Plaintiff’s 3 allegations concerning his lack of access to the Courts, lack of notice of the Motion to Withdraw 4 (see Dkt. No. 93 at 4), and the date written on the Opposition, and to address the issue on its
5 merits. Although the Court acknowledges Plaintiff’s concerns about the timing of his counsel’s 6 withdrawal, the Court finds no basis advanced in his briefing that would alter its decision that 7 withdrawal was appropriate. None of the briefing contradicts his former counsel’s assertions that 8 the representation was no longer possible under the Rules of Professional Conduct. As such, the 9 Court does not reconsider its Order permitting the withdrawal. 10 The Court separately finds that the trial date and interim deadlines should be adjusted to 11 allow Plaintiff additional time to prepare this matter, now that he is proceeding pro se (without 12 counsel). The Court hereby AMENDS the case schedule as follows: 13 Case Event Existing Deadline New Deadline 14 JURY TRIAL DATE October 10, 2023 December 11, 2023
15 at 9:00 AM 16 Reports from expert witness March 14, 2023 May 15, 2023 under FRCP 26(a)(2) due 17 All motions related to April 13, 2023 June 14, 2023 discovery must be filed by 18 and noted on the motion calendar on the third Friday 19 thereafter (see CR7(d)) Discovery completed by May 15, 2023 July 14, 2023 20 All dispositive motions must June 12, 2023 August 14, 2023 21 be filed by and noted on the motion calendar on the fourth 22 Friday thereafter (see CR7(d)) 23 All motions in limine must be September 5, 2023 November 6, 2023 filed by and noted on the 24 1 motion calendar no earlier than the third Friday 2 thereafter and no later than the Friday before the pretrial 3 conference Agreed pretrial order due September 26, 2023 November 28, 2023 4 Trial briefs, proposed voir September 26, 2023 November 28, 2023 5 dire questions, and proposed jury instructions 6 Pretrial conference September 28, 2023 December 5, 2023 at 1:30 PM 7 8 All other requirements set forth in the Order Setting Trial Date and Related Dates shall 9 remain in effect. (Dkt. No. 76.) 10 The clerk is ordered to provide copies of this order to Plaintiff and all counsel. 11 Dated March 31, 2023. A 12 13 Marsha J. Pechman United States Senior District Judge 14 15 16 17 18 19 20 21 22 23 24