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Malone v. Quigley

United States District Court, W.D. Washington, Tacoma

October 23, 2019

CALVIN MALONE, et al., Plaintiffs,
v.
KEVIN W. QUIGLEY, et al., Defendants.

          ORDER DIRECTING PRO BONO COORDINATOR TO IDENTIFY PRO BONO COUNSEL AND GRANTING IN PART AND DENYING IN PART MOTION FOR AN EXTENSION AND SCHEDULING ORDER

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE

         The District Court has referred this matter to the undersigned pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3, and MJR4.

         The Court previously granted defendants' motion for summary judgment dismissal of this matter brought under 42 U.S.C. § 1983 by civil detainees at the Special Commitment Center (“SCC”) for exposure to environmental tobacco smoke (“ETS”). That decision has been vacated and remanded to the Court by the Ninth Circuit. The matter is now before the Court on plaintiffs' motions for the appointment of counsel, for an extension of time in which to respond to defendants' latest summary judgment motion, and for a scheduling order. See Dkts. 193, 196.

         Having considered the parties' submissions, the balance of the record, and the governing law, the Court grants plaintiffs' motion for the appointment of counsel, contingent on the identification of counsel willing to represent plaintiffs pro bono in this matter. The Court also grants in part and denies in part the motion for an extension and scheduling order.

         BACKGROUND

         In July 2019, the Ninth Circuit issued a memorandum opinion vacating this Court's grant of summary judgment in defendants' favor and remanding for further proceedings. See Dkt. 188, at 2-3. In its memorandum opinion, the Ninth Circuit counseled that “[a]s the issues presented in this case are novel and non-frivolous, the district court should seriously consider appointing counsel on remand.” Dkt. 188, at 6. In the Court's order granting defendants' summary judgment motion on plaintiff's remaining claim (regarding ETS at the SCC), the Court had found that the ETS exposure was not unreasonable or in violation of contemporary standards of decency, that plaintiffs had not provided evidence of their likelihood of future harm, and that plaintiffs did not establish that defendants acted with deliberate indifference. See Dkt. 178, at 8- 10; Dkt. 181. The Ninth Circuit reversed these rulings on the basis that the Court (1) should have applied a more protective standard than “contemporary standards of decency” to plaintiffs' claim and (2) should not have analyzed deliberate indifference using a “subjective awareness” inquiry. See Dkt 188. The Ninth Circuit specifically stated that “it was error to apply the less generous Eighth Amendment standard to the plaintiffs' claim.” Dkt. 188, at 6.

         Within a week of the Ninth Circuit's mandate, defendants again filed a summary judgment motion. See Dkt. 191. Plaintiffs then filed the pending motion for the appointment of counsel and motion for an extension of time in which to respond to the summary judgment motion and for a scheduling order. See Dkts. 193, 196. This Court re-noted defendants' summary judgment motion for later, as the existing deadlines forced plaintiffs to choose between filing a summary judgment response without the benefit of a ruling on their extension and counsel motions or failing to comply with Local Civil Rule 7(j) (“[p]arties should not assume that the motion [for an extension] will be granted and must comply with the existing deadline unless the court orders otherwise.”).

         Defendants have filed responses to plaintiff's motions for counsel and an extension, and these matters are ripe for decision. See Dkts. 199, 200.

         DISCUSSION

         I. Appointment of Counsel

         Plaintiffs request the appointment of counsel to represent them and argue that they have established the exceptional circumstances that justify appointing counsel. See Dkt. 193. Defendants oppose the request. See Dkt. 199.

         Although there is no right to counsel in a civil action, 28 U.S.C. § 1915(e)(1) authorizes this Court to “request an attorney to represent any person unable to afford counsel.” See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). To appoint counsel for indigent civil litigants under this provision, there must be “exceptional circumstances.” See Id. “When determining whether ‘exceptional circumstances' exist, a court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these considerations is dispositive and instead must be viewed together.” Id.

         Plaintiffs assert that they cannot afford an attorney-an assertion that defendants do not appear to contest. See Dkt. 199. Plaintiffs obtained permission to proceed in forma pauperis before the Ninth Circuit. See Dkt. 186. They have also submitted declarations stating that they have limited means and do not have significant employment income. See Dkts. 95-98. Thus the Court finds that plaintiffs cannot afford private counsel.

         Regarding whether plaintiffs have shown a likelihood of success on the merits, defendants argue that plaintiffs have not met their burden to establish a likelihood of success on the merits because defendants “are entitled to qualified immunity.” Dkt. 199, at 3. They ...


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