Lloyd v. Buzell

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA LARRY LLOYD, CASE NO. C19-6239 BHS Plaintiff, ORDER 9 v. SHAWN BUZELL, et al., 11 Defendants.

13 THIS MATTER is before the Court on pro se plaintiff Larry Lloyd’s Motion re Ineffective Assistance of Counsel, Dkt. 124; Lloyd’s Motion for Leave to Appeal in forma pauperis, Dkt. 128; and Lloyd’s Motion for Transcripts at government expense, Dkt. 131.

17 In 2018, Lloyd was a pretrial detainee at the Kitsap County Jail. He alleges that when he got into an altercation with another inmate, Defendants Shawn Buzzell, Pascual Rocha, and Keith Hall used excessive force to control him, violating his Fourteenth Amendment rights. He sued in 2019, Dkt. 1, and Magistrate Judge Christel ultimately appointed counsel. Dkts. 93 and 96. Defendants sought summary judgment on all Lloyd’s claims, arguing there was no evidence in support of them, and that they were entitled to qualified immunity in any event. Dkt. 78. Judge Christel recommended granting the motion, Dkt. 119, and this Court adopted his Report and Recommendation (“R&R”) and dismissed the case with prejudice, Dkt. 120 at 2. It also adopted the R&R’s recommendation that the Court revoke Lloyd’s in forma pauperis status for purposes of any appeal. Id. On March 29, 2022, the Court entered a Judgment and closed the case.

6 Dkt. 121.

7 Two months later, Lloyd sought an extension of time for filing an appeal of the Court’s Judgment, arguing that his court-appointed counsel had failed to timely do so. Dkt. 122. The Court granted that motion, Dkt. 123, and Lloyd filed his Notice of Appeal, Dkt. 125. His attorney then withdrew. Dkts. 127 and 132. The Ninth Circuit referred Lloyd’s Motion to Appeal in forma pauperis to this Court. Dkt. 128.

12 The issues are addressed in turn.

13 Lloyd’s “Motion re Ineffective Assistance,” Dkt. 124, now asks the Court to permit him to file objections to the Magistrate Judge’s R&R, arguing that his attorney failed to do so. The Court already granted Lloyd relief based on his attorney’s alleged failure to timely appeal the Court’s judgment, and Lloyd has attempted to take advantage of that opportunity by filing a notice of appeal. The Court will not re-visit the underlying Order and Judgment dismissing his claims, for the reasons articulated in the R&R. Any dispute over the quality of his attorneys’ representation is a matter between him and them. The Motion for Leave to file objections at this late date, Dkt. 124, is DENIED.

21 Nor will the Court reconsider its determination that Lloyd is not entitled to appeal in forma pauperis. Lloyd has established that he is indigent, but as the Magistrate Judge’s R&R concluded, he has not established that he is seeking to appeal in good faith under 28 2 U.S.C. § 1915(a)(3). “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The determination whether a party can proceed in forma pauperis is a “matter within the discretion of the trial court.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). The Court determines that an appeal would be frivolous. Generally, an issue is not frivolous if it has an “arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Lloyd has not made such a showing, particularly as to the defendants’ claim of qualified immunity, and the evidence of the alleged excessive force is lacking in any event. Lloyd’s recent application for leave to proceed in forma pauperis does not persuade the Court that it or the Magistrate Judge wrongly decided the issue the first time. The Ninth Circuit may view the issue differently, as always. Lloyd’s renewed Motion for Leave to proceed in forma pauperis is DENIED.

14 Finally, Lloyd’s Motion for Transcripts, Dkt. 131, seeks copies of 31 different pleadings, motions, declarations, responses, replies, and Orders filed in the case. He cites 28 U.S.C. § 753(f), which relates to transcripts of court hearings from a court reporter.

17 This case was dismissed on summary judgment; there were no hearings and there are no transcripts of any in-court proceedings. Lloyd’s Motion for Transcripts from a court reporter is therefore DENIED as moot. The Clerk’s Office charges $.50 per page for paper copies of documents in its electronic file. Lloyd might ask his former counsel for copies of his file, to which he has a right. His request for copies at government expense when he is not proceeding in forma pauperis is DENIED.

1 The case remains closed.

2 IT IS SO ORDERED.

3 Dated this 11th day of August, 2022.

A BENJAMIN H. SETTLE United States District Judge