Ejonga-Deogracias v. Department of Corrections et al

Filing 75

ORDER granting 63 Motion for Extension of Time - Plaintiff may have until 4/9/18 to file a second amended complaint; denying 65 Motion to Appoint Counsel; and denying 71 Motion to Stay. **SEE ORDER FOR DETAILS** Signed by Magistrate Judge Theresa L Fricke.**4 PAGE(S), PRINT ALL**(JoJo Ejonga-Deogracias, Prisoner ID: 366372)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOJO EJONGA-DEOGRACIAS,
Case No. C15-5784-RJB-TLF

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Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, ET.
AL.,

ORDER GRANTING EXTENSION,
DENYING MOTION TO APPOINT
COUNSEL, AND DENYING
MOTION TO STAY AS MOOT

Defendants.

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The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate
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Theresa L. Fricke. Currently before the Court is plaintiff’s “Motion for Extension of Time to File
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2nd Amended Complaint” (Dkt. 63), “Motion for Appointment of Counsel” (Dkt. 65), and

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“Motion to Stay While Appeal is Pending in Ninth Circuit Court of Appeals” (Dkt. 71).
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On August 11, 2017, defendant Donald Holbrook filed a Motion to Dismiss plaintiff’s
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complaint as against him. Dkt. 50. On November 2, 2017, the undersigned issued a Report and
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Recommendation recommending dismissal of plaintiff’s complaint as against defendant
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Holbrook. Dkt. 60. On November 27, 2017, District Judge Robert J. Bryan issued an order
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adopting the Report and Recommendation to the extent that it recommended dismissal of the
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claims asserted against defendant Holbrook but provided that plaintiff, if he chooses, may file a
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second amended complaint on or before December 15, 2017. Dkt. 62. On December 6, 2017,
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plaintiff filed a Notice of Appeal of Judge Bryan’s order (Dkt. 64), a “Motion for Extension of
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Time to File 2nd Amended Complaint,” (Dkt. 63) and a “Motion for Appointment of Counsel”

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ORDER GRANTING EXTENSION, DENYING MOTION
TO APPOINT COUNSEL, AND DENYING MOTION TO
STAY AS MOOT - 1

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(Dkt. 65). On January 8, 2018, plaintiff filed a “Motion to Stay While Appeal is Pending in

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Ninth Circuit Court of Appeals.” Dkt. 71. The Court will address each motion in turn.

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I.

Motion to Appoint Counsel

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Plaintiff moves for an order appointing counsel. Dkt. 65. Plaintiff states that he is unable

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to afford counsel and due to the complexity and number of defendants named in the suit he has a

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limited ability to identify the liable defendants’ names and addresses. Id. Plaintiff asserts that

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counsel will be able to identify specific persons or people liable and the level of liability which

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will require further investigation. Id. He further indicates that he believes medical expert

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testimony will be necessary to testify to the effects of his alleged injuries and mental health

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history and that cross-examination of witnesses may be required, and that counsel will be able to

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distinguish the “issue of question and how it applie [sic] to each defendant.” Id.

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No constitutional right exists to appointed counsel in a § 1983 action. Storseth v.

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

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Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is

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discretionary, not mandatory.”). In “exceptional circumstances,” a district court may appoint

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counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)). Rand v. Roland, 113 F.3d

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1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis

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supplied.) To decide whether exceptional circumstances exist, the Court must evaluate both “the

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likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro

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se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328,

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

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must plead facts that show he has an insufficient grasp of his case or the legal issue involved, and

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an inadequate ability to articulate the factual basis of his claim. Agyeman v. Corrections Corp. of

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ORDER GRANTING EXTENSION, DENYING MOTION
TO APPOINT COUNSEL, AND DENYING MOTION TO
STAY AS MOOT - 2

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America, 390 F.3d 1101, 1103 (9th Cir. 2004). Although a pro se litigant may be better served

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with the assistance of counsel, being better served by a lawyer as opposed to being a pro se

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litigant is not the legal criteria. See Wilborn, 789 F.2d at 1331; Rand, 113 F.3d at 1525.

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The Court finds that plaintiff’s alleged reasons do not constitute exceptional

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circumstances that warrant appointment of counsel. Plaintiff’s pleadings appear to demonstrate

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an adequate ability to articulate his claims pro se. Although plaintiff asserts the issues in this

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case are “complex”, he has not demonstrated as such but, rather, his complaint appears to

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articulate relatively straight-forward claims of alleged Due Process and Eighth Amendment

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violations. Plaintiff claims he requires counsel to assist him in identifying and locating various

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defendants. However, plaintiff makes no effort to explain what efforts, if any, he has made to

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identify or locate the individuals he names or seeks to name as defendants. The fact that plaintiff

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believes prosecution of this case would be easier with the assistance of counsel does not establish

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an exceptional circumstance that would justify appointing counsel in this case. See Wilborn, 789

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F.2d at 1331. Furthermore, plaintiff has also not shown a likelihood of success on the merits. Id.

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Accordingly, plaintiff’s Motion for Appointment of Counsel (Dkt. 5) is denied.
II.

Motion for Extension of Time
Plaintiff states he needs additional time to conduct research and requests an extension of

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60 days. Id. Defendant does not oppose the extension. Dkt. 68. Accordingly, plaintiff’s motion is

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granted to the extent that he may have until April 9, 2018, to file a second amended complaint.

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However, the Court also notes that defendant Bill Hamby has not yet been served in this

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case and that the Attorney General’s Office has notified the Court that Mr. Hamby has retired

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and no longer works for the Department of Corrections or the State of Washington. Dkt. 48.

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Accordingly, to the extent plaintiff includes Bill Hamby as a defendant in his second amended

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ORDER GRANTING EXTENSION, DENYING MOTION
TO APPOINT COUNSEL, AND DENYING MOTION TO
STAY AS MOOT - 3

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complaint, he is directed to provide the Court with a last known address for Mr. Hamby so that

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service may be properly effected.

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III.

Motion to Stay While Appeal is Pending
Plaintiff moves to stay all proceedings while his appeal of Judge Bryan’s order is

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pending. Dkt. 71. Plaintiff requests that all proceedings be stayed pending a decision on his

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appeal. Id. On January 24, 2018, the Court of Appeals issued an order dismissing plaintiff’s

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appeal for lack of jurisdiction, because the trial court’s order dismissing plaintiff’s complaint

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(Dkt. 62) was not final or appealable. Dkt. 73. In light of the Court of Appeals Order dismissing

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plaintiff’s appeal, there is no appeal currently pending. Mr. Ejonga-Deogracias’ motion to stay

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(Dkt. 71) is therefore denied as moot.

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Accordingly, it is ORDERED that:

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(1) Plaintiff’s Motion for Appointment of Counsel (Dkt. 65) is DENIED.

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(2) Plaintiff’s Motion for Extension of Time (Dkt. 63) is GRANTED. Plaintiff may have

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until April 9, 2018, to file a second amended complaint. To the extent plaintiff

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includes Bill Hamby as a defendant in his second amended complaint, he is directed

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to provide the Court with a last known address for Mr. Hamby.

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(3) Plaintiff’s Motion to Stay While Appeal is Pending (Dkt. 71) is DENIED as moot.

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Dated this 7th day of February, 2018.
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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER GRANTING EXTENSION, DENYING MOTION
TO APPOINT COUNSEL, AND DENYING MOTION TO
STAY AS MOOT - 4