Jones v. Shinn
ORDER GRANTING PLAINTIFF'S OCTOBER 2, 2017 177 Motion For Appointment Of Counsel. Signed by JUDGE LESLIE E. KOBAYASHI on 10/11/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OPHERRO GARY JONES, FED. REG. )
DAVID SHINN, WARDEN, et al., )
CIVIL 15-00486 LEK-KJM
ORDER GRANTING PLAINTIFF’S OCTOBER 2, 2017
MOTION FOR APPOINTMENT OF COUNSEL
Before the Court is pro se Plaintiff Opherro Jones’s
(“Plaintiff”) Motion for Appointment of Counsel (“Motion”), filed
on October 2, 2017.
[Dkt. no. 177.]
The Court has considered
the Motion as non-hearing matter pursuant to Rule LR7.2(e) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
Plaintiff’s Motion is
hereby granted for the reasons set forth below.
Plaintiff filed his first Motion for Appointment of
Counsel on June 26, 2017 (“6/26/17 Motion”), which the magistrate
judge denied on July 24, 2017 (“7/24/17 Order”).
[Dkt. nos. 137,
Plaintiff’s appeal of the 7/24/17 Order, [filed 8/3/17
(dkt. no. 157),] is currently pending before this Court.
In the 7/24/17 Order, the magistrate judge correctly
noted that there is no constitutional right to counsel in civil
cases and, pursuant to 28 U.S.C. § 1915(e)(1), a district court
may only request an attorney to represent an indigent party in
[7/24/17 Order at 2 (citation and quotation
Further, in determining whether exceptional
circumstances warrant the appointment of counsel, courts consider
both whether the indigent party is likely to succeed on the
merits and whether he is able to articulate his claims pro se in
light of the complexity of the case.
[Id. at 3.]
judge concluded that Plaintiff had not demonstrated a likelihood
of success and that Plaintiff was able to articulate his claims
pro se because the case is not complex.
[Id. at 4-5.]
magistrate judge also found that the other circumstances
Plaintiff relied upon did not constitute exceptional
circumstances: his housing in a segregation unit; the need to
retain a medical expert because of conflicting testimony; and
Plaintiff’s anticipated surgery and rehabilitation period.
The instant Motion is a re-filed version of the 6/26/17
Order, with additional information inserted on page one and a new
The crux of Plaintiff’s new information is that he
had neurological surgery on September 13, 2017 in Colorado, was
hospitalized until September 26, 2017, and is still in such
severe pain that he cannot sit down or think.
[Motion at 1.]
According to Plaintiff, the neurological surgeon informed him
that those conditions may continue for a period between six weeks
to three months after the surgery, and he will not “be completely
healed till 2 years from now.”
[Id. at 5.]
that, because of the pain and his inability to sit or walk, he is
unable to conduct legal research, investigate the facts, or write
In light of the new information about Plaintiff’s
surgery and his post-surgery condition, this Court finds that
Plaintiff is unable to articulate his claims on his own.
particular, this Court notes that there is a Motion for Partial
Summary Judgment (“Summary Judgment Motion”) pending.
9/1/17 (dkt. no. 172).]
The Summary Judgment Motion is currently
scheduled for hearing on November 6, 2017, and Plaintiff’s
memorandum in opposition is due by October 16, 2017.
filed 9/18/17 (dkt. no. 175).]
Plaintiff is medically unable to
comply with the hearing date and filing deadline if he is
required to continue representing himself pro se.
This Court agrees with the magistrate judge’s
assessment that there is “noting demonstrating that Plaintiff is
likely to succeed on the merits.”
[7/24/17 Order at 4.]
However, in reviewing a district court’s denial of a pro se
prisoner plaintiff’s motion for the appointment of counsel, the
Ninth Circuit noted the plaintiff’s “complaint state[d] a claim
for relief, and therefore suggest[ed] that he may succeed on the
Tilei v. McGuinness, 642 F. App’x 719, 722 (9th Cir.
Therefore, under the circumstances of the case –
including the plaintiff’s physical incapacitation, the Ninth
Circuit held that there were exceptional circumstances warranting
the appointment of pro bono counsel.
This Court has
previously ruled that Plaintiff’s Eighth Amendment and Fourteenth
Amendment claims against former Federal Detention Center-Honolulu
(“FDC-Honolulu”) Warden David Shinn and FDC-Honolulu Food Service
Supervisor Nora Inouye, in their individual capacities, each
state a claim.
[Order Dismissing First Amended Complaint in Part
and Directing Service, filed 5/4/16 (dkt. no. 19), at 7, 11.]
Those rulings, taken together with Plaintiff’s current physical
incapacity as a result of his surgery, constitute exceptional
circumstances warranting referral of the case to this district
court’s Civil Pro Bono Panel.
Plaintiff’s Motion is granted insofar as the Court will
refer this case to the Civil Pro Bono Panel.
will be for the limited purpose of responding to the Summary
Judgment Motion, unless an agreement is reached to extend the
However, Plaintiff is cautioned that, because
there is no constitutional right to counsel in civil cases and
§ 1915(e)(1) only authorizes this Court to “request an attorney
to represent” Plaintiff, he will have to continue to represent
himself pro se if no attorney from the Civil Pro Bono Panel
In that instance, this Court and the
magistrate judge will accommodate Plaintiff’s medical condition
through other means, such as by providing Plaintiff additional
time to respond to the Summary Judgment Motion.
On the basis of the foregoing, Plaintiff’s Motion for
Appointment of Counsel, filed October 2, 2017, is HEREBY GRANTED.
The Court will issue an order referring this case to the Civil
Pro Bono Panel for the limited purpose of responding to the
Motion for Partial Summary Judgment, [filed 9/1/17 (dkt. no.
This Order SUPERSEDES the magistrate judge’s July 24,
2017 Order Denying Plaintiff’s Motion for Appointment of Counsel,
and renders Plaintiff’s appeal of the 7/24/17 Order MOOT.
nos. 153, 157.]
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 11, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
OPHERRO GARY JONES VS. DAVID SHINN, WARDEN, ET AL; CIVIL 15-00486
LEK-KJM; ORDER GRANTING PLAINTIFF’S OCTOBER 2, 2017 MOTION FOR
APPOINTMENT OF COUNSEL
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