Nanez v. Sapp

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 SHAWN DALE NANEZ, CASE NO. 3:24-cv-05293-RSL-GJL 11 Plaintiff, v. ORDER REFFERRING CASE TO 12 PRO BONO PANEL AND PENELOPE SAPP, et al., STAYING CASE DEADLINES [13] Defendants. [14] 15 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 16 Judge Grady J. Leupold. Currently pending before the Court is Plaintiff Shawn Dale Nanez’s 17 Amended Motion for Appointment of Counsel. Dkt. 36. Plaintiff argues his mental health and 18 lack of legal experience prevent him from litigating his claims effectively. Id. Defendants 19 Penelope Sapp, Genie Elton, K. Hall, S. Billingsley, R. Fitzwater, G. Krause, T. Gibson 20 (collectively “Defendants”) oppose Plaintiff’s request for counsel, arguing court-appointed 21 counsel is not necessary in this case. Dkt. 39. 22 Upon review of the relevant record, the Court finds exceptional circumstances exist 23 warranting the appointment of voluntary counsel. Plaintiff’s Motion is therefore GRANTED 24 contingent on the Court being able to locate an attorney willing to represent him pro bono in this 1 case. All case deadlines are hereby STAYED, and this matter is REFERRED to the Pro Bono 2 Panel to identify an attorney who is available and willing to accept a voluntary appointment in 3 this action. If voluntary pro bono counsel cannot be located within a reasonable time, 4 Plaintiff will be required to proceed without appointed counsel. 5 I. DISCUSSION 6 There is no constitutional right to court-appointed counsel in § 1983 actions. Storseth v. 7 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); United States v. $292,888.04 in U.S. Currency, [8] 54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under this section is discretionary, 9 not mandatory.”). And district courts lack authority to require counsel to represent indigent 10 prisoners in such cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). 11 Nonetheless, a district court may request that an attorney voluntarily represent an indigent 12 plaintiff but only in “exceptional circumstances.” See 28 U.S.C. § 1915 (e)(1); Terrell v. Brewer, [13] 935 F.2d 1015, 1017 (9th Cir. 1991); Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), 14 overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). 15 To decide whether exceptional circumstances exist, the Court must evaluate (1) “the 16 likelihood of success on the merits” and (2) “the ability of the [plaintiff] to articulate his claims 17 pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 18 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). On 19 the second factor, a plaintiff must plead sufficient facts to show he has an insufficient grasp of 20 his case or the legal issues involved and an inadequate ability to articulate the factual basis of his 21 claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 22 Neither factor is dispositive, “rather they must be considered cumulatively.” Cano v. Taylor, 739 23 F.3d 1214, 1218 (9th Cir. 2014). [24] 1 Upon a judicial determination that exceptional circumstances warranting the appointment 2 of counsel exist, this Court’s plan and procedures for requesting pro bono representation in 3 prisoner civil rights actions is outlined in General Order 07-23 (effective Jan. 1, 2024). Under the 4 Court’s plan, pro se plaintiffs must submit the following when seeking appointment of voluntary 5 counsel in civil rights actions: 6 [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 7 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 8 without securing representation, and identifying any prior pro bono appointments of counsel to represent the party in cases brought in this Court, including both 9 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 10 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 11 to the motion. 12 Id. at 5. 13 The Court concludes that this action involves exceptional circumstances warranting the 14 appointment of counsel. At this early stage, this Court acknowledges it cannot make a definitive 15 determination as to whether Plaintiff is likely to succeed on the merits of his claims. However, 16 the Court nonetheless observes that Plaintiff alleges he suffered significant bodily injury and 17 required emergency surgery after certain Defendants ignored numerous requests for assistance. 18 Dkt. 7 at 10–12, 15–20. Further, Plaintiff’s allegations suggest the existence of witnesses, 19 medical records, and other evidence lending credence to his claims. Id. 20 The Court further acknowledges that Plaintiff was able to adequately articulate his claims 21 in light of the lenient pleading standard applied to pro se litigants. However, given nature of his 22 claims, the severity of the injuries alleged, the potential for cultivating probative evidence, and 23 Plaintiff’s representations that he lacks the legal knowledge and mental acuity to continue in this [24] 1 action without assistance, the Court deems appointment of voluntary counsel appropriate at this 2 juncture. 3 Having concluded that exceptional circumstances exist, the Court now examines 4 Plaintiff’s financial eligibility for court-appointed counsel and his efforts to obtain pro bono 5 counsel through other means. See General Order 07-23 (effective Jan. 1, 2024). Plaintiff was 6 granted in forma pauperis status based on his inability to afford the filing fee when he initiated 7 this action. Dkt. 6. In addition, a Financial Affidavit and updated copy of Plaintiff’s Prison Trust 8 Account Statement demonstrate his continued indigence. Dkts. 37, 38. 9 Next, in a sworn Declaration attached to his Motion, Plaintiff states that he sought pro 10 bono representation from Attorney Darryl Parker at the Civil Rights Justice Center, from the 11 Disability Rights of Washington, and from four other civil attorneys. Dkt. 36 at 5–6. Despite 12 these efforts, none of the attorneys or organizations Plaintiff contacted offered pro bono 13 representation. Id. Plaintiff also states that he has not received pro bono representation in a prior 14 legal action. Id. at 6. 15 Based on the above, the Court finds that Plaintiff is unable to afford counsel on his own 16 and is thus financially eligible for pro bono representation. The Court further finds that Plaintiff 17 has attempted, without success, to obtain pro bono representation through means other than court 18 appointment. Therefore, the Court concludes that Plaintiff has substantially complied with the 19 requirements for obtaining appointment of voluntary counsel set forth in Section 3(b) of General 20 Order 07-23. 21 II. CONCLUSION 22 Accordingly, Plaintiff’s Amended Motion for Appointment of Counsel (Dkt. 36) is 23 GRANTED contingent on the Court being able to locate an attorney willing to represent him 24 pro bono in this matter. This matter is hereby REFERRED to the Pro Bono Panel to identify an 1 attorney who is available and willing to accept a voluntary appointment in this action. The Clerk 2 SHALL identify an attorney or law firm from the Court’s Pro Bono Panel to represent Plaintiff 3 in this case. The scope of the engagement will ultimately be between the attorney accepting 4 voluntary appointment and the client (Plaintiff). 5 Plaintiff is ADVISED that the Court cannot force any attorney to accept a pro bono 6 appointment in this case. Plaintiff is further ADVISED that it is possible that a pro bono attorney 7 will not be found and, if so, he will remain unrepresented. If the Court cannot locate an 8 attorney who is willing to provide representation within a reasonable time, the parties will be 9 notified by a minute entry for the electronic docket, stating that the inquiry was unsuccessful and 10 that Plaintiff will be required to continue in this action without court-appointed counsel. 11 Finally, all case deadlines established in the Court’s Pretrial Scheduling Order (Dkt. 30) 12 are hereby STAYED and will be reinstated in a separate order after the above-stated matters are 13 resolved. Plaintiff’s Motion for Extension of Time to Complete Discovery (Dkt. 42) is therefore 14 DENIED as moot. 15 Dated this 6th day of February, 2025. [16] A [17] 18 Grady J. Leupold United States Magistrate Judge