Malone et al v. Strong

Filing 79

ORDER Denying Motions (Dkt. 66-71) for New Counsel; and MOTION for "Opt-Out Class" Status; signed by Magistrate Judge David W. Christel. As Plaintiffs may have misunderstood the nature of the appointment of pro bono counsel, Plaintiffs may file motions to proceed pro se on or before September 18, 2017. (GMR- cc: Plaintiffs Robert E. Lough, Gary Shaw, Elmer Campbell, Tremayne Francis, Curtis Brogi, and William Curry, Jr.) ( 66 Motion filed by Plaintiff Robert E Lough ( 23 Motion in 3:17-cv-05164-RBL-DWC); 67 Motion filed by Plaintiff Gary Shaw ( 18 Motion in 3:17-cv-05162-RBL-DWC); 68 Motion filed by Plaintiff Elmer Campbell ( 19 Motion in 3:17-cv-05165-RBL-DWC); 69 Motion filed by Plaintiff Tremayne Francis ( 20 Motion in 3:16-cv-05961-RBL-DWC); 70 Motion filed by Plaintiff Curtis Brogi ( 21 Motion in 3:17-cv-05199-RBL-DWC); and 71 Motion filed by Plaintiff William Curry, Jr. ( 24 Motion in 3:16-cv-05989-RBL-DWC))

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CALVIN MALONE, et al.,

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Plaintiffs,

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MARK STRONG, et al.,
Defendants.

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ORDER

v.

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CASE NO. 3:16-CV-05284-RBL-DWC

The District Court referred this 42 U.S.C. § 1983 action to United States Magistrate
Judge David W. Christel. Currently before the Court are six “Motion[s] for New Counsel and for
‘Opt-Out Class’ Status.” Dkt. 66-71. The Motions were filed by Plaintiffs Robert E. Lough, Gary
Shaw, Elmer Campbell, Tremayne Francis, Curtis Brogi, and William Curry, Jr. (“Plaintiffs”).
See id. In the Motions, Plaintiffs request the Court: (1) assign different counsel; and (2) assign
Plaintiffs an “opt-out class status.” After review of the Motions and relevant record, the Court
concludes Plaintiff will not be assigned new counsel. Further, this is not a class action, thus,
Plaintiffs will not be granted “opt-out class status.” Therefore, the Motions (Dkt. 66-71) are
denied.

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ORDER - 1

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First, Plaintiffs request new counsel because Mr. Arbenz was appointed to represent

2 Plaintiffs pro bono, but sent Plaintiffs a contingency fee agreement. See Dkt. 66-71. There are
3 approximately 200 Plaintiffs currently alleging constitutional violations arising from the potable
4 water at the SCC. See Dkt. 62. This Court determined exceptional circumstances exist which
5 allowed the Court to assist Plaintiffs in securing counsel. Attorney Casey Arbenz was identified
6 as an attorney willing to represent one or all IFP Plaintiffs pro bono upon entering an agreement
7 regarding the terms of representation. See Dkt. 40. Mr. Arbenz is the attorney of record for
8 Plaintiffs. See Dkt. 61.Mr. Arbenz was appointed under the Pro Bono Plan (“the Plan”) to
9 represent Plaintiffs in this case. The purpose of the Plan is for “furnishing representation to pro
10 se litigants in civil rights actions where the Court exercises its discretion to provide such
11 representation.” General Order 10-05. Under Section 5 of the Plan, “[t]he appointed attorney or
12 the firm with which the attorney is affiliated shall seek reimbursement from the pro se litigant for
13 the costs incurred in litigating the action to the extent the litigant is able to bear such costs.” If a
14 litigant is unable to bear costs of the litigation, the pro bono attorney may apply for
15 reimbursement of reasonable expenses from the Western District Court Civil Rights Litigation
16 Fund. Under the Plan, the appointed attorney may only be required to bear costs of the litigation
17 if reimbursement is not available from the litigant or the litigation fund. Regardless of whether
18 Plaintiffs proceed pro se or with counsel, be it Mr. Arbenz or newly appointed counsel, Plaintiffs
19 are responsible for all costs and fees associated with this case. For example, Plaintiffs would be
20 required to pay for discovery expenses, expert fees, subpoena fees, and transcript expenses.
21 Because Mr. Arbenz is appointed under the Plan, he is able to seek reimbursement from the
22 Litigation Fund, if Plaintiffs are unable to pay for litigation expenses. If Plaintiffs proceed pro se
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ORDER - 2

1 they will be responsible for litigation expenses and will not have the opportunity to seek
2 reimbursement through the Litigation Fund.
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Regarding a fee award, the contingency fee agreement allows Mr. Arbenz to collect fees

4 if the case is resolved favorably for Plaintiffs. See e.g. Dkt. 66. If the Court were to assign new
5 counsel, the new counsel would also likely have an agreement which would allow the attorney to
6 collect fees if the case is resolved favorably for Plaintiffs.
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The Court also notes Mr. Arbenz agreed to represent Plaintiffs in the SCC potable water

8 cases “pro bono upon entering an agreement regarding the terms of representation.” Dkt. 40, p.
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For the above stated reasons, the Court finds Plaintiffs have failed to show Mr. Arbenz’s

11 contingency fee agreement is in violation of the Plan. Accordingly, the Court declines to appoint
12 new counsel to represent Plaintiffs because Mr. Arbenz sent contingency agreements to Plaintiffs
13 and is seeking to recover the cost of litigation expenses from Plaintiffs.
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Second, Plaintiffs’ request to be allowed to opt-out of class status. At this time, Plaintiffs’

15 cases have been consolidated into one case, Malone, et al. v. Strong, et al., 3:16-cv-05284-RBL16 DWC (W.D. Wash.). Class status has not been certified. Therefore, Plaintiffs’ request to opt-out
17 of class status is denied as moot.
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In conclusion, the Motions (Dkt. 66-71) are denied. However, as Plaintiffs may have

19 misunderstood the nature of the appointment of pro bono counsel, Plaintiffs may file motions to
20 proceed pro se on or before September 18, 2017. The Court reminds Plaintiffs, for any Plaintiff
21 who decides to proceed pro se, that Plaintiff will still be responsible for all costs and expenses of
22 litigation (i.e. fees for expert witnesses, subpoenas, transcripts, and discovery expenses) and will
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ORDER - 3

1 not have the opportunity to seek reimbursement through the Litigation Fund. In addition, any
2 Plaintiff who decides to proceed pro se will likely not be included in the consolidated case.
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The Clerk is directed to send a copy of this Order through the U.S. Postal Service to

4 Plaintiffs Robert E. Lough, Gary Shaw, Elmer Campbell, Tremayne Francis, Curtis Brogi, and
5 William Curry, Jr. at the Special Commitment Center.
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Dated this 29th day of August, 2017.

A

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David W. Christel
United States Magistrate Judge

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ORDER - 4