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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MICHAEL A. WOOD, CASE NO. 2:22-CV-636-DGE-DWC 11 Plaintiff, v. ORDER GRANTING-IN-PART 12 MOTION FOR RECONSIDERATION UNITED STATES OF AMERICA, et al., AND DIRECTING PRO BONO 13 COORDINATOR TO IDENTIFY PRO Defendants. BONO COUNSEL 14
15 On October 2, 2023, the Court denied Plaintiff Michael A. Wood’s Motion for 16 Appointment of Counsel. See Dkt. 113. On October 16, 2023, Plaintiff filed a Motion for 17 Reconsideration, requesting, in part, the Court reconsider its denial of Plaintiff’s request for 18 Court-appointed counsel. Dkt. 122.1 After review of the record, Plaintiff’s Motion for 19 Reconsideration (Dkt. 122) is GRANTED-IN-PART and the Court refers this matter to the pro 20 bono coordinator for appointment of counsel from the Western District Pro Bono Panel to 21 represent Plaintiff in this matter. 22
1 In the Motion for Reconsideration, Plaintiff also requested the Court reconsider its Order staying 23 discovery as to the Bureau of Prisons (“BOP”). Dkt. 122. The Court denied that portion of Plaintiff’s Motion as moot on November 1, 2023. Dkt. 131. 24 ORDER GRANTING-IN-PART MOTION FOR 1 I. Discussion 2 A. Motion for Reconsideration 3 Plaintiff seeks reconsideration of the Court’s denial of his request for appointment of 4 counsel. Dkt. 122. The Court directed Defendants to file responses. The Federal Defendants do
5 not oppose the appointment of counsel, in the event their motions for summary judgment are 6 denied. Dkt. 138. The remaining Defendants oppose the Motion for Reconsideration and the 7 Court appointing counsel to represent Plaintiff. Dkts. 137, 139. 8 Pursuant to Local Civil Rule 7(h), motions for reconsideration are disfavored and will be 9 denied absent a showing of manifest error or a showing of new facts or legal authority which 10 could not have been presented earlier with reasonable diligence. 11 The record reflects Plaintiff filed a supplement to his Second Amended Complaint 12 (“SAC”) on March 31, 2023 (“Supplement”). Dkt. 52. In the Supplement, Plaintiff appears to 13 seek permission to add a claim of civil conspiracy to his SAC. Id. Plaintiff names several new 14 defendants who are Assistant United States Attorneys. Id. Based on a review of the record,
15 Plaintiff’s Supplement has been largely overlooked. See Docket (no order denying leave to 16 supplement the SAC; defendants named in the SAC were not added to the case caption). Plaintiff 17 also sought leave of the Court to amend the SAC on May 2, 2023 and July 3, 2023. See Dkts. 62, 18 81. Both motions were denied without prejudice because Plaintiff failed to comply with the 19 Local Civil Rules when he did not attach a proposed amended complaint to each motion. See 20 Dkts. 76, 88. On October 16, 2023, Plaintiff again filed a Motion for Leave to Amend. Dkt. 123. 21 Plaintiff has now attached a proposed third amended complaint. Dkt. 123-1. 22 Based on the record, Plaintiff has been attempting, unsuccessfully, to amend the SAC 23 since March of 2023. See Dkt. 52. While this is not “new” evidence, the Court finds a renewed
24 ORDER GRANTING-IN-PART MOTION FOR 1 review of the history of this case is sufficient to warrant reconsideration of the Order denying 2 Court-appointed counsel. Therefore, Plaintiff’s Motion for Reconsideration (Dkt. 122) is 3 granted-in-part as follows: the Court will reconsider its decision to deny counsel. 4 B. Request for Court-Appointed Counsel
5 No constitutional right to appointed counsel exists in a § 1983 action. Storseth v. 6 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. 7 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is 8 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may 9 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 10 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), overruled on other 11 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the 12 Court must evaluate both “the likelihood of success on the merits [and] the ability of the 13 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” 14 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718
15 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp 16 of his case or the legal issues involved and an inadequate ability to articulate the factual basis of 17 his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 18 As stated above, Plaintiff has been attempting, unsuccessfully, to amend the SAC since 19 March of 2023. See Dkt. 52. Moreover, the Court recognizes that this case presents more 20 complexities than a typical case litigated by an incarcerated individual. Plaintiff has raised claims 21 under 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 22 (1971). As a result, Defendants are represented by several different attorneys, the claims against 23 Defendants are proceeding on different timelines, and counsel are employing different litigation
24 ORDER GRANTING-IN-PART MOTION FOR 1 tactics for each group of Defendants. While this approach is understandable, it can result in a pro 2 se litigant being confused and unable to sufficiently grasp the legal issues in his case and 3 articulate the proper arguments for the vast number of motions filed. For example, at this time, 4 the Federal Defendants have two pending motions for summary judgment (Dkts. 57, 132) and the
5 Mason County Defendants have a pending motion to dismiss (Dkt. 85). Moreover, the Court has 6 stayed discovery several times as to several Defendants and Plaintiff states this has hampered his 7 ability to identify defendants and claims. See Dkt. 140. Finally, several claims and defendants 8 have been dismissed throughout the case resulting in increased confusion for a pro se litigant 9 attempting to litigate this case. See e.g., Dkts. 13, 43, 53, 87, 127. Therefore, the Court concludes 10 exceptional circumstances exist in this case which allow the Court to assist Plaintiff in securing 11 counsel and Plaintiff’s request for counsel (Dkt. 103) is granted. 12 C. Requesting Voluntary Assistance of Counsel 13 While the Court lacks the authority to require counsel to represent indigent prisoners in a 14 § 1983 case, Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989), the Court may
15 request voluntary assistance of counsel pursuant to 28 U.S.C.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MICHAEL A. WOOD, CASE NO. 2:22-CV-636-DGE-DWC 11 Plaintiff, v. ORDER GRANTING-IN-PART 12 MOTION FOR RECONSIDERATION UNITED STATES OF AMERICA, et al., AND DIRECTING PRO BONO 13 COORDINATOR TO IDENTIFY PRO Defendants. BONO COUNSEL 14
15 On October 2, 2023, the Court denied Plaintiff Michael A. Wood’s Motion for 16 Appointment of Counsel. See Dkt. 113. On October 16, 2023, Plaintiff filed a Motion for 17 Reconsideration, requesting, in part, the Court reconsider its denial of Plaintiff’s request for 18 Court-appointed counsel. Dkt. 122.1 After review of the record, Plaintiff’s Motion for 19 Reconsideration (Dkt. 122) is GRANTED-IN-PART and the Court refers this matter to the pro 20 bono coordinator for appointment of counsel from the Western District Pro Bono Panel to 21 represent Plaintiff in this matter. 22
1 In the Motion for Reconsideration, Plaintiff also requested the Court reconsider its Order staying 23 discovery as to the Bureau of Prisons (“BOP”). Dkt. 122. The Court denied that portion of Plaintiff’s Motion as moot on November 1, 2023. Dkt. 131. 24 ORDER GRANTING-IN-PART MOTION FOR 1 I. Discussion 2 A. Motion for Reconsideration 3 Plaintiff seeks reconsideration of the Court’s denial of his request for appointment of 4 counsel. Dkt. 122. The Court directed Defendants to file responses. The Federal Defendants do
5 not oppose the appointment of counsel, in the event their motions for summary judgment are 6 denied. Dkt. 138. The remaining Defendants oppose the Motion for Reconsideration and the 7 Court appointing counsel to represent Plaintiff. Dkts. 137, 139. 8 Pursuant to Local Civil Rule 7(h), motions for reconsideration are disfavored and will be 9 denied absent a showing of manifest error or a showing of new facts or legal authority which 10 could not have been presented earlier with reasonable diligence. 11 The record reflects Plaintiff filed a supplement to his Second Amended Complaint 12 (“SAC”) on March 31, 2023 (“Supplement”). Dkt. 52. In the Supplement, Plaintiff appears to 13 seek permission to add a claim of civil conspiracy to his SAC. Id. Plaintiff names several new 14 defendants who are Assistant United States Attorneys. Id. Based on a review of the record,
15 Plaintiff’s Supplement has been largely overlooked. See Docket (no order denying leave to 16 supplement the SAC; defendants named in the SAC were not added to the case caption). Plaintiff 17 also sought leave of the Court to amend the SAC on May 2, 2023 and July 3, 2023. See Dkts. 62, 18 81. Both motions were denied without prejudice because Plaintiff failed to comply with the 19 Local Civil Rules when he did not attach a proposed amended complaint to each motion. See 20 Dkts. 76, 88. On October 16, 2023, Plaintiff again filed a Motion for Leave to Amend. Dkt. 123. 21 Plaintiff has now attached a proposed third amended complaint. Dkt. 123-1. 22 Based on the record, Plaintiff has been attempting, unsuccessfully, to amend the SAC 23 since March of 2023. See Dkt. 52. While this is not “new” evidence, the Court finds a renewed
24 ORDER GRANTING-IN-PART MOTION FOR 1 review of the history of this case is sufficient to warrant reconsideration of the Order denying 2 Court-appointed counsel. Therefore, Plaintiff’s Motion for Reconsideration (Dkt. 122) is 3 granted-in-part as follows: the Court will reconsider its decision to deny counsel. 4 B. Request for Court-Appointed Counsel
5 No constitutional right to appointed counsel exists in a § 1983 action. Storseth v. 6 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S. 7 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is 8 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may 9 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 10 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), overruled on other 11 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the 12 Court must evaluate both “the likelihood of success on the merits [and] the ability of the 13 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” 14 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718
15 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp 16 of his case or the legal issues involved and an inadequate ability to articulate the factual basis of 17 his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 18 As stated above, Plaintiff has been attempting, unsuccessfully, to amend the SAC since 19 March of 2023. See Dkt. 52. Moreover, the Court recognizes that this case presents more 20 complexities than a typical case litigated by an incarcerated individual. Plaintiff has raised claims 21 under 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 22 (1971). As a result, Defendants are represented by several different attorneys, the claims against 23 Defendants are proceeding on different timelines, and counsel are employing different litigation
24 ORDER GRANTING-IN-PART MOTION FOR 1 tactics for each group of Defendants. While this approach is understandable, it can result in a pro 2 se litigant being confused and unable to sufficiently grasp the legal issues in his case and 3 articulate the proper arguments for the vast number of motions filed. For example, at this time, 4 the Federal Defendants have two pending motions for summary judgment (Dkts. 57, 132) and the
5 Mason County Defendants have a pending motion to dismiss (Dkt. 85). Moreover, the Court has 6 stayed discovery several times as to several Defendants and Plaintiff states this has hampered his 7 ability to identify defendants and claims. See Dkt. 140. Finally, several claims and defendants 8 have been dismissed throughout the case resulting in increased confusion for a pro se litigant 9 attempting to litigate this case. See e.g., Dkts. 13, 43, 53, 87, 127. Therefore, the Court concludes 10 exceptional circumstances exist in this case which allow the Court to assist Plaintiff in securing 11 counsel and Plaintiff’s request for counsel (Dkt. 103) is granted. 12 C. Requesting Voluntary Assistance of Counsel 13 While the Court lacks the authority to require counsel to represent indigent prisoners in a 14 § 1983 case, Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989), the Court may
15 request voluntary assistance of counsel pursuant to 28 U.S.C. §1915(e)(1). Terrell v. Brewer, 935 16 F.2d 1015, 1017 (9th Cir. 1991). In this case, the Court finds the interest of justice will best be 17 served if counsel from the Western District Pro Bono Panel is appointed to represent Plaintiff in 18 this matter. See Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam) (stating 19 that appointment of counsel may be justified when a proceeding will go forward “more 20 efficiently and effectively”). 21 II. Conclusion and Directions to Clerk 22 For the above stated reasons, Plaintiff’s Motion for Reconsideration (Dkt. 122) is 23 granted-in-part. Plaintiff’s Motion to Appoint Counsel (Dkt. 103) is granted and Plaintiff is
24 ORDER GRANTING-IN-PART MOTION FOR 1 appointed counsel, contingent on the identification of counsel willing to represent Plaintiff in this 2 matter. The Western District of Washington’s pro bono coordinator is directed to identify 3 counsel to represent Plaintiff, in accordance with the Court’s General Order 07-23, Section 3. 4 The Court finds this matter shall be stayed while the pro bono coordinator attempts to
5 identify counsel. Once it has been determined whether the Court will be able to appoint an 6 attorney to represent Plaintiff, the Court will issue any additional appropriate orders. 7 As the Court is attempting to identify counsel to represent Plaintiff, the Court finds leave 8 to amend is warranted in this case. Therefore, Plaintiff’s Motion for Leave to Amend (Dkt. 123) 9 is granted. Once counsel is identified and appointed, the Court will direct counsel (or Plaintiff, if 10 counsel cannot be identified) to file a third amended complaint that clarifies the claims upon 11 which Plaintiff intends to proceed. 12 As a third amended complaint will be filed, all remaining motions (Dkts. 57, 85, 132, 13 135) are denied without prejudice and with the right to refile based on the allegations that will be 14 contained in the third amended complaint.2 See Bacon v. Reyes, 2013 WL 3893254 (D. Nev. July
15 26, 2013) (denying motion for summary judgment as moot based on the filing of an amended 16 complaint); Farkas v. Gedney, 2014 WL 5782788, *3 (D. Nev. Nov. 6, 2014) (“[B]ecause 17 granting [plaintiff’s] motion for leave to amend will alter the scope of defendants’ now-filed 18 19
20 2 The denial of a motion without prejudice is non-dispositive. See Jones v. Corr. Corp. of Am., 2011 WL 1706838, at *4 (D. Ariz. May 5, 2011) (internal quotations omitted) (“A denial without prejudice is different than a 21 denial with prejudice in the sense that the former does not preclude a subsequent motion based on the same argument.”). Therefore, in the interest of judicial efficiency and because the Court has denied the Motions for 22 Summary Judgment without prejudice, the Court enters this Order denying the Motions for Summary Judgment, not a report and recommendation. See McCain v. California Highway Patrol, 2011 WL 6328221, at *1, n.1 (E.D. Cal. Dec. 16, 2011) (noting the magistrate judge’s denial without prejudice of the plaintiff’s partial motion for summary 23 judgment was non-dispositive and, therefore, the magistrate judge was not required to submit findings and recommendations). 24 ORDER GRANTING-IN-PART MOTION FOR 1 motion for summary judgment, defendants’ motion for summary judgment is denied without 2 prejudice, subject to re-filing based on the scope of the soon-to-be amended complaint.”). 3 In sum, Plaintiff’s Motion for Reconsideration (Dkt. 122) is granted-in-part. Plaintiff’s 4 Motion to Appoint Counsel (Dkt. 103) is granted and Plaintiff is appointed counsel, contingent
5 on the identification of counsel willing to represent Plaintiff in this matter. Plaintiff’s Motion for 6 Leave to Amend (Dkt. 123) is granted and all remaining motions (Dkts. 57, 85, 132, 135) are 7 denied without prejudice and with the right to refile after the stay is lifted. The Clerk is directed 8 to stay this case and provide a copy of this Order to the pro bono coordinator. 9 Dated this 28th day of February, 2024. 10 A 11 David W. Christel Chief United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING-IN-PART MOTION FOR