Stanley v. Federal Bureau of Prisons

Filing 42

ORDER re Invitation to Move to Appoint Counsel; Joint Status Report due by 7/12/2017, by Hon. Brian A Tsuchida. (SWT) (cc: Plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BRANDON LEE STANLEY,

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Plaintiff,

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ORDER RE INVITATION TO
MOVE TO APPOINT COUNSEL

v.

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CASE NO. C15-256-RSL-BAT

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FEDERAL BUREAU OF PRISONS,

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Defendant.

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This matter comes before the Court on remand from the Ninth Circuit Court of Appeals.

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Dkts. 39, 40. Plaintiff Brandon Lee Stanley, proceeding pro se and in forma pauperis, brought

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this civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

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388 (1971) and the Federal Tort Claims Act (FTCA) against the United States of America,

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Warden Jack Fox, Jane Doe Medical Supervisor, and John Doe X-Ray Technician

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(“defendants”)1 on June 15, 2015. Dkt. 13. Mr. Stanley’s complaint alleged that his claims for

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medical assistance were denied after he broke his right hand at FDC SeaTac on April 6, 2013. Id

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at 4. He further alleged that John Doe X-ray technician failed to order further medical attention

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or immobilize his hand even though an x-ray taken on April 8, 2013, revealed that his hand was

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To date, neither John nor Jane Doe has been identified or served. Accordingly, “defendants”
hereinafter refers only to the United States and Warden Fox.
ORDER RE INVITATION TO MOVE TO
APPOINT COUNSEL - 1

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broken. Id. On April 25, 2013, Mr. Stanley received surgery on his right hand. Id. He claims

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that during the 19 days he waited for the surgery, he suffered avoidable pain and suffering and

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was denied adequate medication. Id. Finally, Mr. Stanley’s complaint alleged lasting damage to

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his right hand due to the delay in obtaining timely and appropriate medical attention. Id. at 5.

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The case was initially resolved on summary judgment based on defendants’ argument

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that Mr. Stanley had failed to exhaust his administrative remedies. Dkt. 27. On appeal,

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defendants “waived the affirmative defense of exhaustion that they asserted in the district court

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[as to Mr. Stanley’s claim arising under the FTCA], and request[ed] that [the Court of Appeals]

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vacate and remand for further proceedings.” Dkt. 39 at 2. The Appeals Court therefore vacated

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the District Court’s judgment and remanded the case for further proceedings. Id.2
The Court has discretion to appoint counsel for indigent civil litigants pursuant to 28

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U.S.C. § 1915(e)(1), but an appointment of counsel should only be granted under “exceptional

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circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).

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When determining whether exceptional circumstances exist, the Court considers “the likelihood

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of success on the merits as well as the ability of the petitioner to articulate his claims pro se in

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light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983). The record suggests that exceptional circumstances exist: defendants have declined

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to pursue the argument underlying the Court’s dismissal on appeal and the Court’s earlier

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judgment has been vacated; the substantive merits of Mr. Stanley’s claims have not yet been

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addressed and may be resolved via supplemental dispositive motions; this matter may be

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amenable to being resolved via mediation or settlement; and if this matter proceeds to trial, the

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plaintiff is both proceeding pro se, and is incarcerated.

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The Court issued its mandate on June 19, 2017. Dkt. 40.

ORDER RE INVITATION TO MOVE TO
APPOINT COUNSEL - 2

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The Court therefore invites Mr. Stanley to file no later than July 12, 2017 a motion for

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appointment of pro bono counsel for all further proceedings, including submission of a joint

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status report regarding pertinent pre-trial and trial dates. See generally General Order 10–05 §

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4(b) (W.D.Wash. Aug. 12, 2010).

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DATED this 22nd day of June, 2017.

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER RE INVITATION TO MOVE TO
APPOINT COUNSEL - 3