United States District Court, W.D. Washington, Tacoma
ORDER ON EMERGENCY MOTION FOR TEMPORARY RESTRAINING
ORDER, MOTION TO CONTINUE, AND VARIOUS OTHER MOTIONS
ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's Motion to
Continue Scheduling Order Dates for Trail [sic] (Dkt. 196),
Plaintiff's Motion to Request Bench Trail [sic] without a
Jury (Dkt. 198), Motion for Appointment of Counsel (Dkt. 198)
and Plaintiff's Emergency Motion for Temporary
Restraining order and Order to Show Cause for Preliminary
Injunction (Dkt. 204). The Court has considered the pleadings
filed regarding the motions and the remaining record.
April 28, 2016, Plaintiff, a prisoner acting pro se,
filed this case pursuant to 42 U.S.C. § 1983. Dkts. 1
and 4. This case is set to begin trial on August 13, 2018 on
the Plaintiff's claim that, while he was a pre-trial
detainee in the Pierce County, Washington jail, Defendants
Lieutenant Charla James-Hutchinson and Sergeant Jackie Caruso
violated his due process rights when they revoked his good
time credits. Dkt. 99. Defendants filed a jury demand in
their answer. Dkt. 48.
for Extension of Pre-Trial Deadlines and Trial Date:
Plaintiff now moves for an extension of time for all
remaining deadlines, including the date that the trial is set
to begin. Dkt. 196. He requests that the trial be reset from
August 18, 2018 to a date in October 2018 and the remaining
case deadlines be reset in September. Id. Plaintiff
argues that officers at the Washington State Penitentiary
seized all his legal documents on May 30, 2018. Id.
(It is unclear if, or when, they will be returned.) He
maintains that he cannot meet the July 16, 2018 deadline to
file motions in limine, and is concerned about meeting the
other deadlines in the case. Dkt. 196. (The agreed pretrial
order is due July 27, 2018; trial briefs, proposed voir dire,
and proposed jury instructions are due on the day of the
pretrial conference - August 3, 2018. Dkt. 173.) Plaintiff
states that he filed an emergency motion in Denton v.
Thrasher, Western District of Washington case number
18-5017-BHS-DWC for return of the documents, but no decision
has been made on the motion. Dkt. 196. If the Court does not
grant the motion for an extension, Plaintiff moves for a free
copy of Plaintiff's Second Amended Complaint with the
exhibits “so that Plaintiff will be able to admit
proper evidence into trial.” Dkt. 196, at 2.
respond and argue that they have no objections to extending
the case deadlines. Dkt. 201. Defendants' counsel states
that he has a one to two week trial scheduled to begin
October 11, 2018, and so it may go until October 25, 2018.
on Motion for Extension of Time. Under Fed.R.Civ.P.
16 (a)(4), a case schedule may be modified for good cause.
on Motion for Extension of Time. Plaintiff's
motion for an extension of time (Dkt. 196) should be granted.
Plaintiff has shown sufficient good cause for this extension.
The trial should be rescheduled to begin on October 29, 2018
at 9:00 a.m. The clerk should be directed to issue a new
scheduling order resetting any remaining deadlines. Plaintiff
should be aware that further extensions of time are very
to Request Bench Trial without a Jury. In this
motion, Plaintiff moves to withdraw his jury demand, and asks
that the trial be conducted without a jury. Dkt. 198.
Plaintiff asserts that because the undersigned is requiring
him to try the case via video conference, he would not be
given a fair trial with a jury. Dkt. 198. He maintains that
the jury would be prejudiced by seeing him in prison clothing
in a jail cell, and would assume that Plaintiff was guilty of
committing a crime. Id. Plaintiff asserts that
“this is a clear case which can be handled/tried and
heard without a jury.” Id. If the court does
not grant this motion, Plaintiff again moves for appointment
of counsel. Id.
respond and note that they made a proper jury demand in their
answer. Dkt. 201. They do not consent to withdrawing their
jury demand. Id.
on Motion for Bench Trial and without a Jury.
Fed.R.Civ.P. 38 (d) provides that “[a] proper jury
demand may be withdrawn only if the parties consent.”
on Motion for Bench Trial and without a Jury. The
motion for a bench trial (Dkt. 198) should be denied. The
Defendants did not consent as is required under Rule 38 (d).
Further, Plaintiff's concern that the jury will be
prejudiced by seeing him in prison clothing or in a cell is
lessened by the fact that the events that are the subject of
this case occurred while Plaintiff was in jail. That he is
still in custody will not come as a surprise to the jury or
unduly prejudice them.
on Motion for Appointment of Counsel. Normally, if a
plaintiff has been granted in forma pauperis status,
the court may appoint counsel to represent him or her in
exceptional circumstances. Franklin v. Murphy, 745
F.2d 1221, 1236 (9th Cir. 1984). To find exceptional
circumstances, the court must evaluate the likelihood of
success on the merits and the ability of the petitioner to
articulate the claims pro se in light of the
complexity of the legal issues involved. Weygandt v.
Look, 718 F.2d 952, 954 (9th Cir. 1983).
on Motion for Appointment of Counsel.
Plaintiff's motion for appointment of counsel (Dkt. 198)
should be denied. There is no showing of an exceptional
circumstance here. Plaintiff has an even likelihood of
success on the merits. Weygandt, at 954. He is able
to articulate the claims pro se in light of the
complexity of the legal issues involved. Id. His
motion (Dkt. 198) should be denied.
for Temporary Restraining Order. After the above
motions were filed, on June 29, 2018, Plaintiff filed an
Emergency Motion for Temporary Restraining Order and Order to
Show Cause. Dkt. 204. It was noted for consideration on June
29, 2018. Id. In this motion, the Plaintiff alleges
that on May 30, 2018, officers at the Washington State
Penitentiary took a box which contained his legal papers.
Id. He expresses concern about meeting the deadlines
set in this case. Id. He “requests this Court
to order and restraining the defendants Paul Pastor, Tim
Thrasher from illegally withholding Plaintiff 1 legal box
which contains all of Plaintiff [sic] legal documents on all
three active civil case[s].” Id., at 4. The
Plaintiff further seeks an order requiring Paul Pastor and
Tim Thrasher to return the box of legal documents.
Id. Plaintiff ...