Tillisy v. Dept of Corrections

UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA MUHAMMED TILLISY, CASE NO. 18-5695 RJB-JRC Plaintiff, ORDER DENYING APPEAL v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.

This matter comes before the Court on the Plaintiff’s Motion to Appeal to the District Court Judge. Dkt. 110. The Court has considered pleadings filed regarding the appeal and the remaining record.

The Plaintiff brings this case under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and the U.S. Constitution (including for violations of his Eighth and Fourteenth Amendment rights) in connection with the Defendants alleged failure to properly accommodate the Plaintiff’s hearing and visual impairments. Dkt. 17.

Plaintiff now appeals the U.S. Magistrate Judge’s decision (Dkt. 109) to deny his motion to compel, motion for reconsideration, and his motion for court appointed counsel. Dkt. 110.

1 Plaintiff complains that he is in transit between institutions and is not being given adequate access to his legal materials. Dkt. 110.

3 For the reasons stated below, Plaintiff’s appeal should be denied and the case should be re-referred to the Magistrate Judge.

5 Standard for Appeal of Order of Magistrate Judge. Fed. R. Civ. P. 72 provides in relevant part as follows: 7 (a) Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must 8 promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days 9 after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and 10 modify or set aside any part of the order that is clearly erroneous or is contrary to law.

11 Appeal of Order Denying Motion to Compel. The Order of the U.S. Magistrate Judge denying the Plaintiff’s motion to compel (Dkt. 109) should be affirmed. The Magistrate Judge properly found that the Plaintiff’s demand, that the Defendants pay for all the discovery, is not required under the Federal Rules of Civil Procedure. Further, the court accurately found that the Plaintiff had not demonstrated that he complied with the meet and confer requirements under the rules. He points out a line in an October 30, 3019 letter to defense counsel, in which he says, “let me know what your thoughts are, or set up another conference call, it is up to you,” (Dkt. 99-1, at 20), as evidence that he did, in fact, meet and confer. As stated in the Magistrate Judge’s decision, this is not sufficient under the rules. The Plaintiff fails to demonstrate that this order is clearly erroneous or is contrary to law.

21 Appeal of Order Denying Motion for Reconsideration. The Order of the U.S. Magistrate Judge denying the Plaintiff’s motion for reconsideration as moot (Dkt. 109) should be affirmed.

1 The magistrate judge denied the Plaintiff’s motion for reconsideration as moot. The order granted the Plaintiff an extension of time to respond to the motion for summary judgment.

3 The Plaintiff has failed to show that the decision to deny the motion for reconsideration as moot was clearly erroneous or contrary to law.

5 Appeal of Order Denying Motion for Court Appointed Counsel. The Order of the U.S. Magistrate Judge denying the Plaintiff’s motion for court appointed counsel (Dkt. 109) should be affirmed.

8 Under 28 U.S.C. § 1915(e)(1), the court may request an attorney to represent any person unable to afford counsel. Under Section 1915, the court may appoint counsel in exceptional circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To find exceptional circumstances, the court must evaluate the likelihood of success on the merits and the ability of the plaintiff to articulate the claims pro se in light of the complexity of the legal issues involved.

13 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

14 Plaintiff has not shown that that the Magistrate Judge’s order was clearly erroneous or contrary to law. Plaintiff’s success on the merits is an open question. He can articulate his positions adequately and raise issues to the court. Plaintiff’s claims are not complex. The Order of the U.S. Magistrate denying the Plaintiff’s motion for court appointed counsel (Dkt. 109) should be affirmed.

19 Re-Referral. This case should be re-referred to Magistrate Judge Creatura.

20 It is ORDERED that: 21 • Plaintiff’s Appeal to District Judge (Dkt. 110) IS DENIED; 22 • The Order of the U.S. Magistrate Judge (Dkt. 109) IS AFFIRMED; and 23 • The case IS RE-REFERRED to the Magistrate Judge Creatura.

1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address.

3 Dated this 13th day of March, 2020.

4 A ROBERT J. BRYAN United States District Judge