United States District Court, W.D. Washington, Tacoma
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
Charles S. Longshore and Keith L. Closson, proceeding pro
se and in forma pauperis, filed this civil
rights Complaint under 42 U.S.C. § 1983. There
are currently ten motions pending before the Court in this
case. See Dkt. 4-6, 13, 18, 29, 34, 37, 38,
The Court has reviewed the relevant record and directs
Plaintiffs to show cause why this case should not be severed
because Plaintiffs are no longer housed at the same
correctional facility. Regarding Platiniffs' Motions, the
Court: (1) denies Plaintiffs' Motion for Counsel (Dkt.
5), Motion for Telephonic Conference (Dkt. 13), and Motion to
Proceed (Dkt. 18); (2) grants Plaintiffs' Motion to
Strike (Dkt. 37); (3) denies as moot Platiniffs' Motion
for Recusal (Dkt. 38); and (4) re-notes Plaintiffs'
Motions for injunctive relief (Dkt. 4, 34), Motion for class
certification and class counsel (Dkt. 6); Motion to Appoint
Experts (Dkt. 49), and Motion for Privileged Correspondence
(Dkt. 29) for November 24, 2017.
Order to Show Cause
plaintiffs may join in one action if they assert any right to
relief arising out of the same occurrence or series of
occurrences and if any question of law or fact in common to
all plaintiffs will arise in the action. Fed.R.Civ.P. 20.
However, Rule 21 of the Federal Rules of Civil Procedure
authorizes the Court, on just terms, to sever claims. See
Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371,
1375 (9th Cir.1980) (even if the specific requirements of
Rule 20 may be satisfied, a trial court must examine other
relevant factors to determine if joinder of a party will
comport with principles of fundamental fairness).
Plaintiffs in this action are properly joined, the Court has
found that management of pro se multi-plaintiff
inmate litigation presents significant burdens to the parties
and the Court. In this case, Plaintiffs are inmates who are
proceeding pro se, and, although each Plaintiff may
appear on his own behalf, one Plaintiff may not appear as an
attorney for the other. Johns v. County of San
Diego, 114 F.3d 874, 877 (9th Cir. 1997); see also
Russell v. United States, 308 F.2d 78, 79 (9th Cir.
1962) (holding that “a litigant appearing in
propria persona has no authority to represent anyone
other than himself”). As such, during the prosecution
of this action, each Plaintiff would be required to sign and
submit his own motions and notices related to his claims in
the action, and all Plaintiffs would be required to
individually sign any motion or notice filed on behalf of all
when the case was initiated, both Plaintiffs were housed at
Stafford Creek Corrections Center; however, on October 5,
2017, Plaintiff Longshore filed a Notice of Change of
Address, stating he had been transferred to Washington
Corrections Center. See Dkt. 48. Because Plaintiffs
are now housed at different facilities and because of
security concerns related to inmate correspondence and
face-to-face communications, it is unlikely Plaintiffs will
be able to file any motions or notices on behalf of all
Plaintiffs. Further, Plaintiffs would have, at best, very
limited opportunities to discuss case strategy, share
discovery, or even provide each other copies of the motions
and notices they file with the Court. See Osterloth v.
Hopwood, 2006 WL 3337505, at *4 (D. Mont. Nov. 15,
2006). Continued administration of this lawsuit by Plaintiffs
has become virtually impossible due to their housing
placements and regulations regarding inmate-to-inmate
these concerns in mind, the Court finds the adjudication of
Plaintiffs' claims in the same action would result in
unfairness to Plaintiffs and Defendant, while also impacting
the Court's goals of achieving judicial economy and
maintaining efficient control of the Court's docket.
Allowing each Plaintiff to proceed separately would overcome
the unfairness created by these circumstances. Therefore, the
parties are directed to show cause why this action should not
and Defendant shall file briefing with the Court on or before
November 20, 2017, showing cause why the case should not be
severed. The Court notes some signatures appear
inconsistent throughout the filings in this case. A pro
se plaintiff shall not sign a document on behalf of
Motion for Court Appointed Counsel (Dkt. 5)
August 1, 2017, Plaintiffs filed a “Motion and
Declaration to Appoint Counsel” (“Motion for
Counsel”). Dkt. 5. No constitutional right to appointed
counsel exists in a § 1983 action. Storseth v.
Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see
United States v. $292, 888.04 in U.S. Currency, 54 F.3d
564, 569 (9th Cir. 1995) (“[a]ppointment of counsel
under this section is discretionary, not mandatory”).
However, in “exceptional circumstances, ” a
district court may appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly
28 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d
1520, 1525 (9th Cir. 1997), overruled on other
grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether
exceptional circumstances exist, the Court must evaluate both
“the likelihood of success on the merits [and] the
ability of the [plaintiff] to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986) (quoting Weygandt v.
Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff
must plead facts showing he has an insufficient grasp of his
case or the legal issues involved and an inadequate ability
to articulate the factual basis of his claims. Agyeman v.
Corrections Corp. of America, 390 F.3d 1101, 1103 (9th
Motion for Counsel and documents filed in support of the
Motion for Counsel, Plaintiffs state they are likely to
succeed on the merits of this case and are unable to
articulate their claims because they are proceeding pro
se. Dkt. 5. At this time, Plaintiffs have not shown, nor
does the Court find, this case involves complex facts or law.
Plaintiffs have also not shown an inability to articulate the
factual basis of their claims in a fashion understandable to
the Court, nor have they shown they are likely to succeed on
the merits of this case. The Court notes Plaintiffs have
adequately articulated their claims in the First Amended
Complaint, and various motions and documents filed by
Plaintiffs are organized and understandable to the Court.
See e.g. Dkt. 5, 13, 26, 29, 34, 37, 38. Further,
“Plaintiff[s'] incarceration and limited access to
legal materials are not exceptional factors constituting
exceptional circumstances that warrant the appointment of
counsel. Rather, they are the type of difficulties
encountered by many pro se litigants.”
Dancer v. Jeske, 2009 WL 1110432, *1 (W.D. Wash.
Apr. 24, 2009).
above stated reasons, the Court finds Plaintiffs have failed
to show the appointment of counsel is appropriate at this
time. Accordingly, Plaintiffs' Motion for Counsel (Dkt.
5) is denied without prejudice.