Goninan v. Washington Department of Corrections et al

Filing 34

ORDER denying 10 Motion to Appoint Counsel ; granting 11 Motion to proceed without exhausting remedies; and denying 19 Motion for Oral Argument. Signed by Magistrate Judge J Richard Creatura.**4 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NATHAN ROBERT GONINAN,
Plaintiff,

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v.
WASHINGTON DEPARTMENT OF
CORRECTIONS, et al.,

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CASE NO. 3:17-cv-05714-BHS-JRC
ORDER GRANTING MOTION TO
PROCEED BEFORE
EXHAUSTING ADMINISTRATIVE
REMEDIES AND DENYING
MOTION FOR COUNSEL

Defendants.
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This 42 U.S.C. § 1983 civil rights matter has been referred to the undersigned Magistrate

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Judge pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1,

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MJR 3, and MJR 4. Before the Court is plaintiff’s motion for appointment of counsel (Dkt. 10)

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and motion to file without exhausting remedies (Dkt. 11).

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Plaintiff Nathan Robert Goninan, a.k.a. Nonnie M. Lotusflower, is a transgender woman

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currently in the custody of the Washington Department of Corrections (“DOC”). She is still in

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the process of exhausting her administrative remedies and requests leave to proceed before they

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are fully exhausted, as well as appointment of an attorney. Because defendants do not object, the

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ORDER GRANTING MOTION TO PROCEED
BEFORE EXHAUSTING ADMINISTRATIVE
REMEDIES AND DENYING MOTION FOR
COUNSEL - 1

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Court grants her leave to proceed before exhausting her administrative remedies. However,

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because plaintiff can effectively articulate her claims at this stage of the case, the Court denies

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her motion for appointed counsel.

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BACKGROUND
Plaintiff is a transgender woman who was transferred to the DOC in August of 2017 from

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the Oregon Department of Corrections. She filed her complaint in September of 2017, claiming

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that defendants are denying her gender affirming therapies she received in Oregon, specifically

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access to feminine clothing, makeup, and other feminine products. Dkt. 1, 8. She also claimed

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defendants were denying her medically necessary sex reassignment surgery. Id. She filed a

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motion for a temporary restraining order, asking the Court to order defendants to place her back

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on those therapies. Dkt. 9. She also filed a motion for appointment of counsel (Dkt. 10), a motion

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to proceed without exhausting her administrative remedies (Dkt. 11), and a motion for oral

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argument on those motions (Dkt. 19). Defendants responded to the motion to proceed without

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exhausting administrative remedies and motion for oral argument (Dkt. 24), but did not respond

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to her motion for appointment of counsel.

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DISCUSSION
I.

Motion to Proceed Without Exhausting Administrative Remedies

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Plaintiff requests that she be able to proceed with her case even though she is still in the

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process of exhausting her administrative remedies. Dkt. 19. Though defendants “do not agree to

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[p]laintiff’s claims of denial of medically necessary treatment,” they do not oppose her motion to

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proceed without exhausting administrative remedies. Dkt. 24 at 1. The Court interprets this as

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defendants’ waiver of their exhaustion defense. The Court accepts this waiver and therefore

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grants plaintiff’s motion to proceed without first exhausting her administrative remedies.

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ORDER GRANTING MOTION TO PROCEED
BEFORE EXHAUSTING ADMINISTRATIVE
REMEDIES AND DENYING MOTION FOR
COUNSEL - 2

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II.

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Motion for Oral Argument
Plaintiff requests that the Court grant oral argument to hear the merits of her motion for

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appointment of counsel. Dkt. 19. Defendants state that they do not believe oral argument is

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necessary at this stage in the proceedings. Dkt. 24. The Court agrees. Although the Court may

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grant oral argument when requested, see LCR 7(b)(4), there is enough information in the record

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that the Court does not require oral argument here. Therefore, the Court denies plaintiff’s request

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for oral argument on the motion to appoint counsel (Dkt. 19).

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III.

Motion for Appointment of Counsel

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Plaintiff requests that the Court appoint her counsel in this case. No constitutional right

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exists to appointed counsel in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981). However, in “exceptional circumstances,” a district court may appoint counsel for

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indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Roland, 113 F.3d 1520, 1525

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(9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether or

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not exceptional circumstances exist, the court must evaluate both “the likelihood of success on

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the merits [and] the ability of the petitioner to articulate her claims pro se in light of the

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complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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

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facts that show she has an insufficient grasp of her case or the legal issue involved and an

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

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America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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Here, it is too early in the proceedings to determine plaintiff’s likelihood of success on

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the merits. Though defendants have responded to plaintiff’s complaint, a pretrial scheduling

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order has not yet been filed and there is scant substantive evidence on the record. In addition,

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ORDER GRANTING MOTION TO PROCEED
BEFORE EXHAUSTING ADMINISTRATIVE
REMEDIES AND DENYING MOTION FOR
COUNSEL - 3

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plaintiff has articulated her own claims in a way that is understandable to the Court. Further, her

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claims are based on medical deliberate indifference. Though transgender issues in this context

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can become very complex, at this stage, plaintiff has not shown that she requires the assistance of

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counsel to navigate the issues at this time. The Court does not find the extraordinary

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circumstances that warrant the appointment of counsel here. Therefore, the Court denies

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plaintiff’s motion for appointment of counsel (Dkt. 10), but this denial will be without prejudice,

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if plaintiff wishes to bring such a motion at a later time as the case develops.

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CONCLUSION

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For the reasons stated above, the Court grants plaintiff’s motion to proceed without

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exhausting remedies (Dkt. 11). However, the Court denies plaintiff’s motion for oral argument

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and plaintiff’s motion for appointment of counsel (Dkt. 19) without prejudice.

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Dated this 9th day of January, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER GRANTING MOTION TO PROCEED
BEFORE EXHAUSTING ADMINISTRATIVE
REMEDIES AND DENYING MOTION FOR
COUNSEL - 4