Brennan v. Aston et al

Filing 218

ORDER denying Plaintiff's 199 Motion to Add Declaration of Ronald Brennan Concerning the Withholding of Discovery and Legal Documents; denying Plaintiff's 200 Motion to Appoint Counsel and 216 Motion to Reinstate Previ ously Stricken Documents Dkts 108-134. The Court grants Plaintiff's 212 Letter/Motion to Continue Defendants' Motions and Request for Docket Sheet. The discovery deadline is extended to 6/28/2019, and the dispositive motions deadline is extended to 7/29/2019. The Clerk shall RE-NOTE Defendants' motions for summary judgment (dkt. ## 192 , 193 ) for 6/7/2019. Plaintiff shall file any response briefs by June 3, 2019, and Defendants shall file any reply briefs by the noting date. Signed by Hon. Michelle L. Peterson. (TH) (cc: Defendant via USPS; Copy of docket sheet mailed to Defendant)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RONALD BRENNAN JR.,
Plaintiff,

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Case No. C17-1928-JCC-MLP
ORDER ON PLAINTIFF’S
MISCELLANEOUS MOTIONS

v.
ANTHONY ASTON, et al.,
Defendants.

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I.

INTRODUCTION

This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff has filed the following

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motions: (1) “Motion to Add Declaration of Ronald Brennan Concerning the Withholding of

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Discovery and Legal Documents” (dkt. # 199); (2) motion to appoint counsel (dkt. # 200), with

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two supporting documents (dkt. ## 214, 215); (3) “Letter/Motion to Continue Defendants’

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Motions and Request for Docket Sheet” (dkt. # 212); and (4) “Motion to Reinstate Previously

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Stricken Documents Dkts 108-134” (dkt. # 216). Defendants filed an opposition to Plaintiff’s

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motion to appoint counsel. (Dkt. # 210.) As discussed below, the Court denies all of Plaintiff’s

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motions except for his motion requesting an extension of the deadlines in this case.

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ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 1

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II.
A.

DISCUSSION

“Motion to Add Declaration of Ronald Brennan Concerning the Withholding
of Discovery and Legal Documents”

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Plaintiff asks the Court to add a declaration, which he filed with the motion, to the
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docket. (Dkt. # 199.) In the declaration, Plaintiff states that a Snohomish County Jail employee,
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who is not a defendant in this action, withheld discovery from Plaintiff. (Id. at 2.) Plaintiff also
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asks the Court to appoint counsel. (Id.) Because the declaration is already part of the record, the
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Court DENIES the motion (dkt. # 199) as MOOT.
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B.

Motion to Appoint Counsel

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This is Plaintiff’s fifth motion to appoint counsel. He seeks counsel because he has been
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unable to access his legal materials or depose Defendants, and he believes Defendants’ responses
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to his interrogatories have been insufficient. (Dkt. # 200.) Specifically, Plaintiff claims that when
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he was transferred from the Snohomish County Jail to the Washington State Department of
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Corrections (“DOC”) on January 29, 2019, the DOC transport staff would not let him take his
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legal documents related to this case, and so he had them released to his power of attorney. (Id. at
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4.) He claims that DOC staff at the Washington Corrections Center (“WCC”), where he was
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transferred, told him that only an attorney can send these document to him in prison and that if
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he wants to obtain these documents, he will need to hire an attorney or have one appointed. (Id.
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at 4-5.) He also argues that he needs an attorney to depose the 26 defendants. (Id.) Plaintiff
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further complains that Defendants used boilerplate objections to his first set of interrogatories
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and refused to respond to the second set of interrogatories. (Id. at 5.) In separately filed
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documents, Plaintiff presents evidence that he is temporarily housed at the King County Jail and
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that he has been refused access to the law library there. (Dkt. ## 214, 215.)
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ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 2

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In response, Defendants note that this is Plaintiff’s fifth motion to appoint counsel and

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argue that Plaintiff has not addressed or met the governing legal standard. (Dkt. # 210 at 1.)

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Defendants incorporate by reference their response to his fourth motion to appoint counsel, in

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which they argued that Plaintiff is plainly capable of articulating his claims pro se, has not

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demonstrated that his allegations involve any sort of complex case, and has failed to demonstrate

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a likelihood of success on the merits. (Dkt. # 139 at 3-4.) Defendants also address Plaintiff’s

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claim that he is not receiving discovery, noting that he filed three notices of change of address in

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February 2019 and that his movement may affect receipt of discovery until he reaches his long-

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term assignment with the DOC. (Dkt. # 210 at 2.)

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Generally, a person has no right to counsel in a civil action. See Campbell v. Burt, 141

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F.3d 927, 931 (9th Cir. 1998). In certain “exceptional circumstances,” the Court may request the

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voluntary assistance of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1).

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

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whether “exceptional circumstances” exist, the Court considers “the likelihood of success on the

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merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Neither factor is dispositive, and they must be viewed together before reaching a decision on a

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request for counsel. Id.

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Plaintiff fails to demonstrate exceptional circumstances at this time. Given the factual

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disputes between the parties, Plaintiff has not shown a likelihood of success on the merits. In

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addition, Plaintiff appears able to articulate his claims pro se given that the legal issues are not

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particularly complex. Although Plaintiff is currently unable to access the law library at the King

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County Jail, his stay there is temporary and he will be able to conduct legal research once he

ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 3

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reaches his long-term assignment with the DOC. As discussed below, the Court will extend the

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deadlines in the case to account for Plaintiff’s multiple recent transfers.

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Plaintiff’s remaining complaints relate to difficulties developing the factual record and

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conducting discovery, issues that are not unique to him. If such difficulties were sufficient to

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establish “exceptional circumstances,” nearly every pro se prisoner would be entitled to pro bono

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counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require

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development of further facts during litigation and a pro se litigant will seldom be in a position to

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investigate easily the facts necessary to support the case. If all that was required to establish

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successfully the complexity of the relevant issues was a demonstration of the need for

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development of further facts, practically all cases would involve complex legal issues

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[warranting appointment of counsel].”). Moreover, it appears that at least some of his difficulties

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stem from his multiple transfers and will be resolved once he reaches his long-term assignment.

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If, after reaching his long-term assignment, Plaintiff is still unable to access previously produced

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discovery documents, he should work with counsel for Defendants to obtain the documents.

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Considering both the likelihood of Plaintiff’s success on the merits and his ability to

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articulate his claims pro se in light of the complexity of the legal issues, the Court concludes that

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Plaintiff has not established exceptional circumstances warranting the appointment of counsel.

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Accordingly, the Court DENIES his fifth motion to appoint counsel. (Dkt. # 200.)

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C.

“Letter/Motion to Continue Defendants’ Motions and Request for Docket
Sheet” 1

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Plaintiff asks for a 30-day extension of time to respond to Defendants’ motions for
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summary judgment, pointing to his multiple transfers and inability to access the law library at the
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King County Jail. (Dkt. # 212.) He also seeks to conduct additional discovery. (Id.)
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The Clerk of Court already mailed Plaintiff a copy of the docket sheet. (See Dkt. # 212.)

ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 4

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Defendants’ motions for summary judgment are noted for April 5, 2019. (Dkt. # 213.)

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The discovery deadline is April 30, 2019, and the dispositive motions deadline is May 30, 2019.

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(Dkt. # 197.) Given that Plaintiff currently does not have access to a law library or his discovery,

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the Court finds good cause to extend the deadlines by approximately 60 days. Defendants’

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motions for summary judgment (dkt. ## 192, 193) shall be re-noted for June 7, 2019, with

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Plaintiff’s response briefs due by June 3, 2019. The discovery deadline shall be extended to June

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28, 2019, and the dispositive motions deadline shall be extended to July 29, 2019.

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D.

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On October 11, 2018, Plaintiff filed a 154-page reply to Defendants’ answer to the

“Motion to Reinstate Previously Stricken Documents Dkts 108-134”

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complaint, along with numerous declarations and exhibits. (Dkt. ## 108-134.) The Court struck

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the documents because they were improperly filed. (Dkt. # 143.) Plaintiff now asks the Court to

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allow the stricken documents to be reinstated as his response to Defendants’ motion for summary

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judgment. (Dkt. # 216.)

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The two pending motions for summary judgment were filed by Defendant Hatchell (dkt.

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# 192) and Defendants Machyo and Chaves (dkt. # 193). The motions are limited in scope: the

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defendants argue that Plaintiff’s claims against them must be dismissed because he does not

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allege they caused him a physical injury, as required by the Prison Litigation Reform Act, and

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they are entitled to qualified immunity. As the Court previously informed Plaintiff, any response

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to the motions for summary judgment should be tailored to the specific arguments Defendants

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raise in their motions. (Dkt. # 213 at 2.) Plaintiff’s previously stricken documents address all of

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the claims against all of the defendants, and therefore they are not tailored to the pending

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motions for summary judgment. The Court thus DENIES his motion. (Dkt. # 216.)

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ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 5

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III.

CONCLUSION

The Court DENIES as moot Plaintiff’s “Motion to Add Declaration of Ronald Brennan

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Concerning the Withholding of Discovery and Legal Documents” (dkt. # 199), and DENIES his

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motion to appoint counsel (dkt. # 200) and “Motion to Reinstate Previously Stricken Documents

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Dkts 108-134” (dkt. # 216).

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The Court GRANTS Plaintiff’s “Letter/Motion to Continue Defendants’ Motions and

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Request for Docket Sheet” (dkt. # 212). The discovery deadline is extended to June 28, 2019,

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and the dispositive motions deadline is extended to July 29, 2019.

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The Clerk shall RE-NOTE Defendants’ motions for summary judgment (dkt. ## 192,

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193) for June 7, 2019. Plaintiff shall file any response briefs by June 3, 2019, and Defendants

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shall file any reply briefs by the noting date.

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The Clerk is directed to send copies of this order to the parties and to the Honorable John
C. Coughenour.
Dated this 5th day of April, 2019.

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A

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MICHELLE L. PETERSON
United States Magistrate Judge

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ORDER ON PLAINTIFF’S MISCELLANEOUS
MOTIONS - 6