Penwell v. Strange ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TONY PENWELL, CASE NO. 3:21-cv-05722-RJB-JRC 11 Plaintiff, ORDER DIRECTING PRO BONO 12 v. COORDINATOR TO IDENTIFY PRO BONO COUNSEL 13 CHERYL STRANGE, et al., 14 Defendants. 15 16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to Chief United 17 States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B), and 18 local Magistrate Judge Rules MJR1, MJR3, and MJR4. See Dkt. 5. This matter is before the 19 Court on plaintiff’s motion for appointment of counsel. See Dkt. 8. 20 Having considered plaintiff’s motion, the balance of the record, and the governing law, 21 the Court grants plaintiff’s motion for the appointment of counsel, contingent on the 22 identification of counsel willing to present plaintiff pro bono in this matter. 23 24 1 BACKGROUND 2 Plaintiff, who proceeds in forma pauperis, brought this matter in September 2021. Dkt. 3 1. He is housed at the Washington State Reformatory (“WSR”), a portion of the Monroe 4 Correctional Complex. He alleges that the WSR formerly comprised four living units with 158 5 single occupant cells but that as part of the planned closure of the facility, DOC has closed two 6 WSR living units and transferred prisoners to the remaining two units. Dkt. 7, at 5. Plaintiff 7 alleges that this has resulted in double-celling prisoners who were formerly in single-occupant 8 cells and has essentially resulted in a “158% capacity increase.” Dkt. 7, at 5–7. 9 Plaintiff asserts that the conditions of confinement at the WSR violate his Eighth 10 Amendment rights. He argues that consolidation has impeded the ability to socially distance and 11 that DOC’s safety measures have been inadequate. See Dkt. 7, at 8–9. Significantly, he claims 12 that defendants have intentionally punished prisoners who self-report COVID-19 symptoms “in 13 hope of keeping people from reporting being sick” and are falsifying case numbers. Dkt. 7, at 9. 14 He also alleges that ventilation is inadequate, that his medical conditions are exacerbated by the 15 living conditions, that noise is “out of control,” that there is “regular violence,” and that he is 16 forced to share a toilet with his cellmate. Dkt. 7, at 7. Plaintiff further claims that his rights to 17 equal protection and to due process were violated by consolidation. Dkt. 7, at 10–13. 18 Plaintiff sought a temporary restraining order and preliminary injunctive relief. Dkt. 10. 19 His motion focused on allegations of overcrowding and relocation during the ongoing COVID- 20 19 pandemic. See Dkt. 10. The undersigned recommended denying the motion because the 21 relief sought was overbroad, because overcrowding alone does not amount to an Eighth 22 Amendment violation, and because the materials that plaintiff provided in support of his motion 23 did not support that prison administrators were deliberately indifferent to conditions caused by 24 1 alleged overcrowding during COVID-19. See generally Dkt. 13. The undersigned’s report and 2 recommendation remains pending before the District Court at this time. See Dkt. 13. 3 Plaintiff’s motion for appointment of counsel is ripe for review. See Dkt. 8. Defendants 4 have filed no response. 5 DISCUSSION 6 Plaintiffs proceeding under 42 U.S.C. § 1983 have no constitutional right to appointed 7 counsel. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 8 However, in “exceptional circumstances,” a district court may appoint counsel for indigent civil 9 litigants pursuant to 28 U.S.C. § 1915(e)(1). See id. To decide whether exceptional 10 circumstances exist, the Court must evaluate both “the likelihood of success on the merits and 11 [plaintiff’s] ability to articulate his claims pro se in light of the complexity of the legal issues 12 involved.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither 13 of these considerations is dispositive and instead [both] must be viewed together.” Palmer v. 14 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 15 Plaintiff proceeds in forma pauperis and states that he cannot afford counsel. He states 16 that he is uncertain whether he will continue to have law library access. See Dkt. 8, at 1. 17 This matter is complex enough that it is unlikely plaintiff can articulate and effectively 18 litigate his claims pro se. Indeed, plaintiff seeks to bring this matter as a class action, and he 19 cannot bring a class action while proceeding pro se. See, e.g., Antonetti v. Foster, 691 F. App’x 20 841, 842 (9th Cir. 2017). Although the Court declines to further analyze the merits of plaintiff’s 21 claims at this stage in the litigation, plaintiff’s § 1983 arguments do raise significant 22 constitutional issues, as alleged in the complaint. For instance, plaintiff alleges that defendants 23 created an environment in which prisoners incarcerated at WSR were effectively punished for 24 1 self-reporting COVID-19 symptoms, in order to avoid having to report the true scale of the 2 COVID-19 outbreak at the WSR while the DOC is closing and consolidating that institution. 3 This Court recommended denying plaintiff’s motion for a temporary restraining order and 4 preliminary injunctive relief at least in part because plaintiff was, acting pro se, unable to 5 substantiate these claims with materials that could adequately support his claims. 6 The appointment of counsel to represent plaintiff will ensure that plaintiff, who is housed 7 at an institution currently being closed, is able to engage in discovery and to litigate his claims. 8 In short, the interest of justice will best be served if counsel from the Western District Pro 9 Bono Panel is appointed to represent plaintiff in this matter. See also Johnson v. California, 207 10 F.3d 650, 656 (9th Cir. 2000) (per curiam) (stating that appointment of counsel may be justified 11 when a proceeding will go forward “more efficiently and effectively”). 12 CONCLUSION AND DIRECTIONS TO CLERK 13 Plaintiff’s motion to appoint counsel (Dkt. 8) is granted, contingent on the identification 14 of counsel willing to represent plaintiffs in this matter. The Western District of Washington’s 15 pro bono coordinator is directed to identify counsel to represent plaintiffs, in accordance with the 16 Court’s General Order 16-20 (“In re: Amended Plan for the Representation of Pro Se Litigants in 17 Civil Rights Actions”), section 4. Once it has been determined whether the Court will be able to 18 appoint an attorney to represent plaintiff, the Court will issue appropriate orders. 19 Dated this 23rd day of December, 2021. 20 21 A 22 J.Richard Creatura 23 Chief United States Magistrate Judge 24