Rogers v. Weaver et al

Filing 133

ORDER granting Plaintiff's 107 Motion to Appoint Counsel. This matter is hereby REFERRED to the Pro Bono Panel to identify an attorney who is available and willing to accept a voluntary appointment in this action. If voluntary pro bono counsel cannot be located within a reasonable time, Plaintiff will be required to proceed to trial pro se. Signed by Magistrate Judge Grady J Leupold.(MW) (cc: Plaintiff via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RAY C. ROGERS,
v.

Plaintiff,

CASE NO. 2:23-cv-01160-JCC-GJL
ORDER REFFERRING CASE TO
PRO BONO PANEL

RANDY WEAVER,
Defendant.

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The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate

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Judge Grady J. Leupold. Currently pending before the Court is Plaintiff Ray C. Rogers’s Motion

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for Appointment of Counsel. Dkt. 107. While Plaintiff’s Motion was pending, the District Court

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denied Defendant Randy Weaver’s Motion for Summary Judgment. Dkt. 114 (Order Adopting

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Report and Recommendation). The Court then directed both parties to provide additional

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information and briefing regarding the propriety of appointing voluntary counsel ahead of trial.

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See Dkts. 118, 129 (Plaintiff’s Declarations); Dkts. 122, 131 (Defendant’s Responses). In his

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Responses, Defendant Weaver takes no position on Plaintiff’s request for court-appointed

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counsel and, instead, “defers to the Court.” Dkt. 131 at 3; see also Dkt. 122.

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ORDER REFFERRING CASE TO PRO BONO PANEL - 1

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Upon review of the relevant record, Plaintiff’s Motion is GRANTED contingent on the

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Court being able to locate an attorney willing to represent him pro bono in this case. This matter

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is hereby REFERRED to the Pro Bono Panel to identify an attorney who is available and

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willing to accept a voluntary appointment in this action. If voluntary pro bono counsel cannot

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be located within a reasonable time, Plaintiff will be required to proceed to trial pro se.

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I.

DISCUSSION

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There is no constitutional right to court-appointed counsel in § 1983 actions. Storseth v.

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Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); United States v. $292,888.04 in U.S. Currency,

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54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under this section is discretionary,

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not mandatory.”). And district courts lack authority to require counsel to represent indigent

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prisoners in such cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

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Nonetheless, a district court may request that an attorney voluntarily represent an indigent

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plaintiff but only in “exceptional circumstances.” See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997),

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overruled on other grounds, 154 F.3d 952 (9th Cir. 1998).

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To decide whether exceptional circumstances exist, the Court must evaluate (1) “the

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likelihood of success on the merits” and (2) “the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). On

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the second factor, a plaintiff must plead sufficient facts to show he has an insufficient grasp of

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his case or the legal issues involved and an inadequate ability to articulate the factual basis of his

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claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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ORDER REFFERRING CASE TO PRO BONO PANEL - 2

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Neither factor is dispositive, “rather they must be considered cumulatively.” See Cano v. Taylor,

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739 F.3d 1214, 1218 (9th Cir. 2014).

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Upon a judicial determination that exceptional circumstances warranting the appointment

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of counsel exist, this Court’s plan and procedures for requesting pro bono representation in

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prisoner civil rights actions is outlined in General Order 07-23 (effective Jan. 1, 2024). Under the

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Court’s plan, pro se plaintiffs must submit the following when seeking appointment of voluntary

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counsel in civil rights actions:

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[Section 3] (b) Motion and Declaration of Pro Se Litigant. Any motion for the
appointment of counsel by a party appearing pro se in a civil rights action shall
include a declaration stating the party’s efforts to obtain counsel by means other
than appointment, including having connected with at least two other attorneys
without securing representation, and identifying any prior pro bono appointments
of counsel to represent the party in cases brought in this Court, including both
pending and previously terminated actions. The declaration should further state
whether the pro se litigant has already pursued another action, such as a wage claim
or agency claim, before proceeding with their federal action. A completed copy of
a declaration stating the movant cannot afford to hire an attorney shall be attached
to the motion.
Id. at 5.

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The Court concludes that this action involves exceptional circumstances warranting the

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appointment of counsel. Following his successful opposition of summary judgment, Plaintiff’s

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likelihood of success on the merits is high. And, though Plaintiff was able to sufficiently defend

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his First Amendment retaliation claim at the summary judgment stage, his ability to litigate his

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claim going forward will heavily rely upon his ability to articulate its factual and legal basis. C.f.

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Enriquez v. Dep’t of Corr., No. 3:21-cv-00085-ART-CSD, 2024 WL 1747340, at *1 (D. Nev.

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Apr. 22, 2024) (concluding denial of pro bono counsel to assist pro se prisoner at trial was abuse

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of discretion); Ramirez v. Gutierrez, No. 20-cv-01109-MMA-BLM, 2022 WL 959647, at *3

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(S.D. Cal. Mar. 30, 2022) (concluding concerns regarding credibility determinations were

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premature and did not warrant appointment of counsel before summary judgment).

ORDER REFFERRING CASE TO PRO BONO PANEL - 3

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Plaintiff’s filings thus far raise significant doubt that he can effectively do so during live

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trial proceedings. His legal arguments and discussion of facts, though understandable in writing,

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lack focus and are frequently presented alongside irrelevant issues and ad hominem attacks.

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Moreover, because Plaintiff has recently been transferred to a new correctional facility, his

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efforts will be challenged by a diminished ability to identify potential witnesses to lend further

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proof to his claim occurring at King County Jail. See Dkt. 130. In addition, the critical factual

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disputes in this case involve conflicting testimony between Plaintiff, Defendant Weaver, and

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another correctional officer. See Dkt. 109 at 18; Dkt. 114 at 5–7. As a result, Plaintiff’s ability to

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articulate the factual basis of his claim to a jury will require effective presentation of his own

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testimony and cross-examination of witnesses.

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Alone, these factors would not warrant the appointment of counsel. However, in

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combination, Plaintiff’s likelihood of success on the merits and his questionable ability to

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effectively articulate his claims to a jury pro se are exceptional circumstances warranting the

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appointment of voluntary pro bono counsel ahead of trial.

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Having concluded that exceptional circumstances exist, the Court now examines

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Plaintiff’s financial eligibility for court-appointed counsel and his efforts to obtain pro bono

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counsel through other means. See General Order 07-23 (effective Jan. 1, 2024). Plaintiff was

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granted in forma pauperis status in this action, and a recent copy of his Prison Trust Account

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Statement demonstrates his continued indigency. See Dkt. 129 at 6 ($12.37 account balance as of

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Nov. 5, 2024). Next, in sworn Declarations, Plaintiff states that he sought pro bono

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representation in this case (and in other cases filed before this Court) from Columbia Legal

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Services, Northwest Justice Project, Connelly Law Offices, and the Federal Bar Association for

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the Western District of Washington. Dkts. 118, 129. None of the organizations Plaintiff

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ORDER REFFERRING CASE TO PRO BONO PANEL - 4

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contacted agreed to provide pro bono representation. See Dkt. 118 at 8–12 (Letters Declining

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Representation). Finally, Plaintiff states that he has not received pro bono representation in a

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prior legal action. Dkt. 129 at 2.

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Based on the above, the Court finds that Plaintiff is unable to afford counsel on his own

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and his thus financially eligible for pro bono representation. The Court further finds that Plaintiff

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has attempted, without success, to obtain pro bono representation through means other than court

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appointment. Therefore, the Court concludes that Plaintiff has substantially complied with the

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requirements for obtaining appointment of voluntary counsel set forth in Section 3(b) of General

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Order 07-23.
II.

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CONCLUSION

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Accordingly, Plaintiff’s Motion for Appointment of Counsel (Dkt. 107) is GRANTED

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contingent on the Court being able to locate an attorney willing to represent him pro bono in this

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matter. This matter is hereby REFERRED to the Pro Bono Panel to identify an attorney who is

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available and willing to accept a voluntary appointment in this action. The Clerk SHALL identify

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an attorney or law firm from the Court’s Pro Bono Panel to represent Plaintiff in this case. The

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scope of the engagement will ultimately be between the attorney accepting voluntary appointment

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and the client (Plaintiff).

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Plaintiff is ADVISED that the Court cannot force any attorney to accept a pro bono

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appointment in this case. Plaintiff is further ADVISED that it is possible that a pro bono attorney

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will not be found and, if so, he will remain unrepresented. If the Court cannot locate an attorney

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who is willing to provide representation within a reasonable time, the parties will be notified by a

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//

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//

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ORDER REFFERRING CASE TO PRO BONO PANEL - 5

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minute entry for the electronic docket, stating that the inquiry was unsuccessful and that Plaintiff

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will be required to continue in this action pro se.

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Dated this 7th day of January, 2025.

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A

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Grady J. Leupold
United States Magistrate Judge

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