# Malone v. Quigley > District Court, W.D. Washington · October 23, 2019 URL: https://www.frixlaw.com/law-library/cases/10699643 ## Case - **Court:** District Court, W.D. Washington - **Decided:** October 23, 2019 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10699643 ## Opinion text 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CALVIN MALONE, et al., CASE NO. 3:14-cv-05974 RBL-JRC 11 Plaintiffs, ORDER DIRECTING PRO BONO 12 v. COORDINATOR TO IDENTIFY PRO BONO COUNSEL AND 13 KEVIN W. QUIGLEY, et al., GRANTING IN PART AND DENYING IN PART MOTION FOR 14 Defendants. AN EXTENSION AND SCHEDULING ORDER 15 16 The District Court has referred this matter to the undersigned pursuant to 28 U.S.C. §§ 17 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3, and MJR4. 18 The Court previously granted defendants’ motion for summary judgment dismissal of this 19 matter brought under 42 U.S.C. § 1983 by civil detainees at the Special Commitment Center 20 (“SCC”) for exposure to environmental tobacco smoke (“ETS”). That decision has been vacated 21 and remanded to the Court by the Ninth Circuit. The matter is now before the Court on 22 plaintiffs’ motions for the appointment of counsel, for an extension of time in which to respond 23 to defendants’ latest summary judgment motion, and for a scheduling order. See Dkts. 193, 196. 24 1 Having considered the parties’ submissions, the balance of the record, and the governing 2 law, the Court grants plaintiffs’ motion for the appointment of counsel, contingent on the 3 identification of counsel willing to represent plaintiffs pro bono in this matter. The Court also 4 grants in part and denies in part the motion for an extension and scheduling order. 5 6 BACKGROUND 7 In July 2019, the Ninth Circuit issued a memorandum opinion vacating this Court’s grant 8 of summary judgment in defendants’ favor and remanding for further proceedings. See Dkt. 188, 9 at 2–3. In its memorandum opinion, the Ninth Circuit counseled that “[a]s the issues presented 10 in this case are novel and non-frivolous, the district court should seriously consider appointing 11 counsel on remand.” Dkt. 188, at 6. In the Court’s order granting defendants’ summary 12 judgment motion on plaintiff’s remaining claim (regarding ETS at the SCC), the Court had found 13 that the ETS exposure was not unreasonable or in violation of contemporary standards of 14 decency, that plaintiffs had not provided evidence of their likelihood of future harm, and that 15 plaintiffs did not establish that defendants acted with deliberate indifference. See Dkt. 178, at 8– 16 10; Dkt. 181. The Ninth Circuit reversed these rulings on the basis that the Court (1) should 17 have applied a more protective standard than “contemporary standards of decency” to plaintiffs’ 18 claim and (2) should not have analyzed deliberate indifference using a “subjective awareness” 19 inquiry. See Dkt 188. The Ninth Circuit specifically stated that “it was error to apply the less 20 generous Eighth Amendment standard to the plaintiffs’ claim.” Dkt. 188, at 6. 21 Within a week of the Ninth Circuit’s mandate, defendants again filed a summary 22 judgment motion. See Dkt. 191. Plaintiffs then filed the pending motion for the appointment of 23 counsel and motion for an extension of time in which to respond to the summary judgment 24 1 motion and for a scheduling order. See Dkts. 193, 196. This Court re-noted defendants’ 2 summary judgment motion for later, as the existing deadlines forced plaintiffs to choose between 3 filing a summary judgment response without the benefit of a ruling on their extension and 4 counsel motions or failing to comply with Local Civil Rule 7(j) (“[p]arties should not assume 5 that the motion [for an extension] will be granted and must comply with the existing deadline 6 unless the court orders otherwise.”). 7 Defendants have filed responses to plaintiff’s motions for counsel and an extension, and 8 these matters are ripe for decision. See Dkts. 199, 200. 9 10 DISCUSSION 11 I. Appointment of Counsel 12 Plaintiffs request the appointment of counsel to represent them and argue that they have 13 established the exceptional circumstances that justify appointing counsel. See Dkt. 193. 14 Defendants oppose the request. See Dkt. 199. 15 Although there is no right to counsel in a civil action, 28 U.S.C. § 1915(e)(1) authorizes 16 this Court to “request an attorney to represent any person unable to afford counsel.” See Palmer 17 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). To appoint counsel for indigent civil litigants 18 under this provision, there must be “exceptional circumstances.” See id. “When determining 19 whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on 20 the merits as well as the ability of the petitioner to articulate his claims pro se in light of the 21 complexity of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th 22 Cir. 1983)). “Neither of these considerations is dispositive and instead must be viewed 23 together.” Id. 24 1 Plaintiffs assert that they cannot afford an attorney—an assertion that defendants do not 2 appear to contest. See Dkt. 199. Plaintiffs obtained permission to proceed in forma pauperis 3 before the Ninth Circuit. See Dkt. 186. They have also submitted declarations stating that they 4 have limited means and do not have significant employment income. See Dkts. 95–98. Thus the 5 Court finds that plaintiffs cannot afford private counsel. 6 Regarding whether plaintiffs have shown a likelihood of success on the merits, 7 defendants argue that plaintiffs have not met their burden to establish a likelihood of success on 8 the merits because defendants “are entitled to qualified immunity.” Dkt. 199, at 3. They refer to 9 their arguments in support of summary judgment. See Dkt. 199, at 3 n.1. 10 However, addressing the merits of defendants’ summary judgment motion arguments is 11 not appropriate at this time. Rather, at this point, the appropriate consideration is whether there 12 is a “likelihood” that plaintiffs could succeed on the merits—not whether the Court agrees with 13 defendants’ summary judgment arguments. A “likelihood” does not mean that success is 14 certain—or even probable. Rather, the Ninth Circuit has equated a “likelihood of success” with 15 “possible merit.” See Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 925 (2017) 16 (remanding for the appointment of counsel on the basis of, among other things, “possible merit” 17 of plaintiff’s claims); see also Solis v. Cty. of L.A., 514 F.3d 946, 958 (9th Cir. 2008) (“there may 18 well be merit to [plaintiff’s] claims”). 19 Here, there certainly does appear to be possible merit to plaintiffs’ claims—this matter 20 has already proceeded to summary judgment, and, on appeal, the Ninth Circuit reversed the 21 Court’s order granting summary judgment in defendants’ favor. See Dkt. 188. The Court notes 22 that although the undersigned has denied counsel three times in this matter before the appeal (see 23 Dkts. 67, 104, 136), in doing so, among other considerations, the Court noted that these motions 24 1 were brought at stages of the litigation where it was “not possible to determine plaintiffs’ 2 likelihood of success.” See Dkt. 136, at 6. In view of the Ninth Circuit’s remand, circumstances 3 have somewhat changed. Plaintiffs have established at least a likelihood of success on the 4 merits. 5 Regarding their ability to articulate their claims pro se in light of the complexity of the 6 issues involved, plaintiffs argue that the length of the record and proceedings in this case, the 7 lack of resources at the SCC (including reliable internet, word processor, or telephone access), 8 the complexity of the issues, and their limited legal experience require appointing counsel. See 9 Dkt. 193, at 2–3; Dkt. 195, at 4. In response, defendants point to three prior rulings denying 10 counsel in this matter, plaintiffs’ ability to successfully litigate the matter so far, and the 11 “simplifie[d]” questions presented on remand. See Dkt. 199, at 8. 12 Of course, circumstances common to most pro se litigants—like limited legal experience 13 and resources—will not generally constitute the exceptional circumstances necessary for the 14 appointment of counsel. See Dkt. 104, at 4. On the other hand, an ability to articulate simple 15 issues is not dispositive of the request for counsel, either. Rather, the Court must look to a pro se 16 plaintiff’s ability to articulate the issues in light of the complexity of the legal issues involved. 17 Here, plaintiffs argued throughout the proceedings in this Court that the standard used for 18 an Eighth Amendment cruel and unusual punishment claim was violated. See, e.g., Dkt. 179, at 19 4–6 (objections to report and recommendation on summary judgment motion). This is the very 20 standard that the Ninth Circuit has called into question in this scenario. See Dkt. 188, at 3. And, 21 defendants point out that the Ninth Circuit’s ruling “appears to mark the first instance in which 22 the Ninth Circuit (or any district court therein) has sanctioned a standard other than Helling’s[1] 23 24 1 Helling v. McKinney, 509 U.S. 25 (1993). 1 deliberate indifference test in respect to an ETS claim, regardless of the detention status of the 2 plaintiff.” Dkt. 199, at 5. Indeed, the Ninth Circuit itself recommended seriously considering 3 appointing counsel in view of the “novel and non-frivolous” issues posed. See Dkt. 188, at 6. 4 Because responding to the summary judgment motion will require addressing issues that 5 have somewhat changed from those briefed by plaintiffs throughout these proceedings in this 6 Court and will require analyzing novel legal questions and responding to a qualified immunity 7 defense, the Court finds that the issues at this stage in the proceeding are sufficiently complex to 8 support the appointment of pro bono counsel for plaintiffs. 9 II. Motion for Extension and Scheduling Order 10 Plaintiffs request an extension of time in which to respond to the summary judgment 11 motion until the Court has ruled upon their motion for the appointment of counsel. Dkt. 196, at 12 2.. Their request is granted—the Court will remove the summary judgment motion from the 13 Court’s calendar until it has determined whether pro bono counsel can be identified and 14 appointed to represent plaintiffs. 15 Plaintiffs additionally request that the Court issue a scheduling order in this matter. Dkt. 16 196, at 2. The request is denied, at present. The Court will issue an appropriate scheduling order 17 once it has determined whether counsel can be identified and appointed to represent plaintiffs. 18 III. Directions to Clerk and Conclusion 19 The motion to appoint counsel (Dkt. 193) is granted, contingent on the identification of 20 counsel willing to represent plaintiff in this matter. The Western District of Washington’s pro 21 bono coordinator is directed to identify counsel to represent plaintiff, in accordance with the 22 Court’s General Order 10-05 (“IN RE: Amended Plan for the Representation of Pro Se Litigants 23 in Civil Rights Actions”), section 4. Once it has been determined whether the Court will be able 24 1 to appoint an attorney to represent plaintiffs, the Court will issue appropriate orders, including 2 setting and extending deadlines. 3 The motion for an extension and scheduling order (Dkt. 196) is granted in part and denied 4 in part. The Clerk is directed to remove defendants’ motion (Dkt. 191) from the Court’s calendar 5 at this time. After it is determined whether counsel can be appointed to represent plaintiffs, the 6 Court will issue an appropriate scheduling order and will place the summary judgment motion 7 (Dkt. 191) back on the calendar for consideration. 8 Dated this 23rd day of October, 2019. A 9 10 J. Richard Creatura United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10699643. Public record. Not legal advice.