United States District Court, W.D. Washington, Tacoma
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
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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
have filed responses to plaintiff's motions for counsel
and an extension, and these matters are ripe for decision.
See Dkts. 199, 200.
Appointment of Counsel
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.
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
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.
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 ...