Smith et al v. Washington State et al
Filing
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ORDER denying 202 OBJECTIONS re 201 Magistrate Judge's Order Appointing Pro Bono Counsel, signed by Judge Ronald B. Leighton. (cc: Pltfs)(DK)
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HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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ROBERT SMITH,
CASE NO. C14-5974RBL-JRC
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Plaintiff,
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v.
ORDER DENYING OBJECTION TO
MAGISTRATE JUDGE RULING
STATE OF WASHINGTON,
Defendant.
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THIS MATTER is before the Court on the Defendants’ Objections [Dkt. # 202] to
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Magistrate Judge Creatura’s Order [Dkt. # 201] appointing pro bono counsel in this matter, after
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the Ninth Circuit’s remand [Dkt. # 188]. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1(C).
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Defendants argue that the Court has correctly and consistently declined to appoint
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counsel for the pro se SCC residents in this “second hand smoke” litigation. They argue that the
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Ninth Circuit’s remand for consideration of the case under the Fourteenth Amendment’s
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objective unreasonableness standard (rather than the Eighth’s deliberate indifference standard)
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does not alter the requirement that the Residents demonstrate a likelihood of success on the
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merits in order to obtain court-appointed counsel. They emphasize that the Residents are required
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to show harm under either standard, and they have not done so.
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ORDER DENYING OBJECTION TO
MAGISTRATE JUDGE RULING - 1
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Defendants reiterate that they have a pending motion for summary judgment on qualified
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immunity, and delaying consideration of that motion while the Residents’ new attorney gets up
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to speed on the case will needlessly prolong this litigation. The Ninth Circuit directed the Court
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to “seriously consider” appointing counsel on remand.
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No constitutional right to counsel exists for an indigent plaintiff in a civil case unless the
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plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social
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Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has the
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discretion to appoint counsel for indigent litigants who are proceeding IFP. United States v.
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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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The Court will appoint counsel only under “exceptional circumstances.” Id.; Wilborn v.
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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances
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requires an evaluation of both the likelihood of success on the merits and the ability of the
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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.”
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Wilborn, 789 F.2d at 1331 (internal quotations omitted). These factors must be viewed together
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before reaching a decision on whether to appoint counsel under § 1915(e)(1). Id.
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This Court already dismissed the case, and was reversed, with a clear instruction to
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consider, for the fourth time, whether the Residents should have an attorney. Ninth Circuit
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memorandum opinions are often more cryptic than this Court would prefer, but the message in
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this one is clear. The fact that the Court’s dismissal of the case was reversed with such an
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instruction is alone a significant difference between this motion for counsel and the prior three.
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The defendants qualified immunity argument (based on the “post hoc adoption” of the
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more forgiving Castro standard) appears to have merit. But the arguments surrounding it are
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clearly more complex than the “straightforward” version of the case that this Court already
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ORDER DENYING OBJECTION TO
MAGISTRATE JUDGE RULING - 2
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dismissed, and which the Ninth Circuit sent back. A pro se Resident is not likely to be equipped
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to articulate his claims or a response to the summary judgment motion, which will require legal
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analysis in response to a qualified immunity argument based on the newly-altered standard.
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pending issues are complex, whether or not the case itself is. The Ninth Circuit was clear on its
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position, and this Court strays from the highlighted path at its peril. It is not more efficient for the
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parties—particularly the Defendants—or the Court, if the Court denies counsel, grants summary
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judgment, and the Ninth Circuit reverses again.
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The Defendants’ Objections to the Magistrate Judge’s Order Appointing Counsel are
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OVERRULED and that Order is AFFIRMED. The Magistrate Judge shall appoint a pro bon
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attorney for the Resident Plaintiffs and the Defendants’ pending Summary Judgment Motion
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[Dkt. # 191] is STAYED until further input from the new attorney.
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IT IS SO ORDERED.
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Dated this 18th day of November, 2019.
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A
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Ronald B. Leighton
United States District Judge
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ORDER DENYING OBJECTION TO
MAGISTRATE JUDGE RULING - 3
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