United States District Court, W.D. Washington, Tacoma
ORDER DIRECTING PRO BONO COORDINATOR TO IDENTIFY PRO
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. This
matter is before the Court on plaintiffs' motion for the
appointment of counsel. See Dkt. 14, 15. Having
considered plaintiffs' 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.
2019, plaintiffs-who are or were civilly detained at the
Special Commitment Center (“SCC”)-initiated this
matter by filing a proposed class action complaint under 42
U.S.C. § 1983. Dkt. 1. They alleged that defendants'
failure to provide appropriate working gear and reduction of
SCC wages below minimum wage violated their constitutional
rights, the federal Fair Labor Standards Act (see 28
U.S.C. § 206) (the “FLSA”) and
Washington's Minimum Wage Act (see RCW
49.46.010) (the “MWA”), as well as unjustly
enriched defendants. See Dkt. 11. Plaintiffs, who
paid the filing fee, filed a motion requesting that the
matter be certified as a class action. See Dkt. 12.
undersigned recommended denying the motion for class
certification on the basis that pro se litigants may
not bring a class action lawsuit but allowing plaintiffs to
join their claims together for this action. See Dkt.
13, at 2-4. In response to the undersigned's report and
recommendation, plaintiffs requested the appointment of
counsel. See Dkt. 14. They argued, among other
things, that certain plaintiffs were going to be released
into the community in the near future and would not be
allowed to communicate with the other plaintiffs.
See Dkt. 14, at 3.
District Court adopted the report and recommendation on the
motion for class certification, denied the request for class
certification without prejudice, and referred plaintiffs'
newly raised request for counsel to the undersigned. Dkt. 15.
proceeding under § 1983 have no constitutional right to
appointed counsel. See United States v. $292, 888.04 in
U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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)). See Id. To decide whether
exceptional circumstances exist, the Court must evaluate both
“the likelihood of success on the merits and
[plaintiff's] ability to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Id. (quoting Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
“Neither of these considerations is dispositive and
instead [both] must be viewed together.” Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
the likelihood of success on the merits, here, plaintiffs
allege claims including that defendants' paying SCC
detainees less than minimum wage violates equal protection
and the FLSA. Although the Court declines to analyze the
merits of plaintiffs' claims at this early stage in the
litigation, plaintiffs' § 1983 arguments do raise a
colorable claim of a constitutional violation. Plaintiffs
name the DSHS secretary and SCC CEO, alleging that DSHS pays
them less than minimum wage, yet pays similarly situated
patients at Western State Hospital at least minimum wage.
See Dkt. 11, at 14. They allege that this practice
violates the Equal Protection clause. See Dkt. 11,
at 14. Plaintiffs recognize that the MWA exempts residents of
state institutions-presumably including the SCC-from the
minimum wage requirement, but argue that the way that the
exemption is applied by these defendants violates Equal
Protection. They allege that the failure to pay minimum wage
is ongoing. See Dkt. 11, at 5.
argue that that the failure to pay them at least federal
minimum wage separately violates the FLSA. Dkt. 11, at 15.
The Eleventh Amendment bars their claim for damages against
officials in their official capacities, and the FLSA
generally bars prospective injunctive relief. See
Lorillard v. Pons, 434 U.S. 575, 581 (1978); see,
e.g., Bettys v. Washington, 3:17-cv-5501 RBL,
2017 WL 3034518, at *2 (W.D. Wash. July 18, 2017) (discussing
authorities that Washington State has not waived its immunity
for claims arising out of the FLSA and dismissing SCC minimum
wage claims); Strauss v. Dreyfuss, C10-5646 BHS,
2011 WL 809797, at *2 (W.D. Wash. March 2, 2011) (dismissing
claims against the superintendent and secretary under FLSA by
a SCC plaintiff for this reason). However, to the extent that
plaintiffs bring a claim against defendants for damages for
actions taken in their individual capacities, claims for
damages brought against an official in that official's
individual capacity are generally viable, even if sovereign
immunity would bar such a claim brought against the official
in that person's official capacity. See Hafer v.
Melo, 502 U.S. 21, 30-31 (1991); Bonzani v.
Shinseki, 895 F.Supp.2d. 1003, 1008 n.1 (E.D. Cal. 2012)
(discussing authority that the FLSA extends liability to
this claim presents at least one unique question-whether in
the Ninth Circuit, civilly-detained persons' work should
be analyzed under standards applicable to prisoners, who are
generally not covered employees under the FLSA, or civilian
employees, who may be covered under the FLSA. See
Bettys, 2017 WL 3034518, at *2 (citing Real v.
Driscoli Strawberry Assocs., 603 F.2d 748, 754 (9th Cir.
1979); Hale v. State, 993 F.2d 1387, 1395 (9th Cir.
1993)). Thus, the Court finds that plaintiffs have raised at
least a viable argument that may have a likelihood of success
on the merits.
the Court finds that the factor of plaintiffs' ability to
articulate their claims pro se in light of the
complexity of the matter weighs heavily in favor of
because this case involves multiple plaintiffs and because
they do not reside together, pro se litigation is
unusually impractical. Of the five plaintiffs, one no longer
resides at the SCC (see Dkt. 16) and is, according
to plaintiffs, forbidden from communicating with the others
absent a court order. Although the Court has allowed
plaintiffs to bring their claims together, the Court notes
that practical difficulties are posed once plaintiffs are
transferred from the same institution. Being unable to
communicate with each other makes joint action particularly
problematic. See Seely v. Baca,
3:15-cv-00118-MMD-VPC, 2016 WL 829915, at *2 (D. Nev. Mar. 1,
2016); Davis v. United States, No.
1:07-cv-00936-LJO-SMS PC, 2007 WL 2225791, at *1 (E.D. Cal.
July 31, 2007). Indeed, even if plaintiffs could communicate
with each other, joint pro se litigation poses a
variety of hurdles, including that plaintiffs must each sign
pleadings separately so that they do not engage in the
unauthorized practice of law. They must also each serve
pleadings, motions, and other documents on each other, since
each is a party. See Osterloth v. Hopwood, No. CV 06
152 M JCL, 2006 WL 3337505, at *5 (D. Mont. Nov. 15, 2006).
the Court notes that plaintiffs' claims are somewhat
complex as they pose novel issues of law-for instance,
whether SCC residents are employees under the FLSA. In
addition, plaintiffs bring some claims under state law, some
claims under the FLSA, and some claims under § 1983.
This adds a layer of complexity-for instance, prospective
injunctive relief is not ...