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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

TONY D. PENWELL, 

Plaintiff, 

v. 

REED HOLTGEERTZ, et al., 

Defendants. 

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CASE NO. C05-2106-TSZ-MAT 

REPORT AND RECOMMENDATION

 

SUMMARY AND INTRODUCTION 

 In 2007, the Court granted summary judgment in favor of defendants on all of plaintiff 

Tony D. Penwell’s 42 U.S.C. § 1983 claims. (Dkt. 101.) In 2010, the United States Court of 

Appeals for the Ninth Circuit affirmed that summary-judgment order on all grounds except for 

one. See Penwell v. Holtgeertz, No. 07-35638 (9th Cir. July 7, 2010), located at (Dkt. 114). 

The Ninth Circuit vacated summary judgment on Mr. Penwell’s free-exercise claim, and 

remanded so that the Court could consider the question in light of a legal standard enunciated 

during the pendency of the appeal. 

Having considered supplemental briefing and the entire record, the Court finds that the 

factual record has been insufficiently developed regarding whether the restrictions on Mr. 
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Penwell’s ability to attend group worship services and to consult privately with a chaplain 

(1) violated the First Amendment’s Free Exercise Clause, and (2) violated the Religious Land 

Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc–1. So the 

parties may further develop the record and bring renewed dispositive motions, the Court 

recommends as follows: DENYING defendants’ renewed motion for summary judgment 

(Dkts. 81, 129); CONSTRUING plaintiff’s opposition briefs in 2007 (Dkt. 96, at 13) and 2011 

(Dkt. 127, at 3–5) to be motions to amend the complaint to add a RLUIPA claim and 

GRANTING the motions to amend; and GRANTING plaintiff leave to file (a) an updated 

application to proceed in forma pauperis (“IFP”) and (b) a renewed motion for appointment of 

counsel.1

BACKGROUND 

On November 3, 2004, Mr. Penwell was booked into King County’s Regional Justice 

Center (“RJC”) in Kent, Washington, as a pretrial detainee awaiting trial on charges of 

first-degree assault, second-degree rape, unlawful imprisonment, felony harassment, and 

tampering with a witness. (Dkt. 81-1, at 2; Dkt. 130, at 2); see State v. Penwell, No. 

04-1-13613-6 KNT (information filed Nov. 8, 2004) (hereinafter “First Criminal Matter”). He 

was convicted by jury of those charges in January 2006. (Dkt. 81-1, at 2.) While a pretrial 

detainee, he was also charged with and, in June 2007, convicted by guilty plea of two counts of 

child molestation. (Dkt. 81-3, at 3–6; Dkt. 133, at 2); see State v. Penwell, No. 05-1-09289-7 

KNT (information filed July 7, 2005) (hereinafter “Second Criminal Matter”). 

 

 1 Plaintiff should file his updated IFP application and renewed motion for appointment of counsel within 

thirty (30) days of the date of the order adopting this Report and Recommendation. 
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On November 23, 2004, during the pendency of the First Criminal Matter, King County 

Superior Court Judge Michael Trickey ordered that Mr. Penwell be “prohibited from making 

any calls from the King County Jail Jail-R.J.C., except to defense counsel at SCRAP.” (Dkt. 

133, at 5.)2

 In December 2004, Judge Trickey twice denied Mr. Penwell’s motions for 

reconsideration. (Dkt. 133, at 7–8.) 

Based on the court’s phone-block order, on November 23, 2004, the King County 

Department of Adult and Juvenile Detention (“DAJD”) assigned Mr. Penwell to Administrative 

Segregation (“Ad Seg”). (Dkt. 130, at 2.) According to the DAJD, the jail facilities are 

equipped to prevent inmates from calling a specific telephone number by blocking such 

numbers one-by-one. (Id.) The DAJD cannot, however, prevent an inmate from calling a 

specific person if, for example, that person can also be reached at an unblocked number, or 

someone at an unblocked number transfers the call to that person. (Id. at 3.) According to the 

DAJD, the only way that jail facilities can enforce a court order to keep an inmate from calling 

anyone other than his lawyer is to assign the inmate to Ad-Seg housing.3

On June 1, 2007 (i.e., ten days before Mr. Penwell pleaded guilty in the Second 

Criminal Matter), King County Superior Court Judge Laura C. Inveen granted Mr. Penwell’s 

motion to modify the original phone-block order, thereby permitting Mr. Penwell to contact his 

attorneys, his mother, and any other person permissible by jail regulations and the law. (Dkt. 

 

 2 Mr. Penwell was also prohibited from sending outgoing letters and from receiving visits from his 

mother. 

 3 As defendants note and is undisputed by Mr. Penwell, a trial court may order a highly restrictive phone 

block such as this one after having been presented with evidence that the blocking of specific phone numbers has 

not prevented an inmate from reaching a witness, victim, or other person he has been ordered not to call. (Dkt. 

130, at 3.) 
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133, at 2.) On June 4, 2007, DAJD Classification staff informed Mr. Penwell that he would be 

immediately removed from Ad Seg and returned to the general population. (Dkt. 130, at 4.) 

However, Mr. Penwell expressed concerns about his safety within the general prison population 

due to the child-molestation charges and asked that he be allowed to remain in Ad Seg. (Id.) 

Jail staff informed Mr. Penwell that he would be returned to the general population whenever 

he chose to be returned. (Id.) On July 3, 2007, Mr. Penwell was transferred out of the King 

County system to the Washington Department of Corrections. (Dkt. 133, at 3.) 

Mr. Penwell filed his current § 1983 action in December 2005. (Dkt. 1.) The Court 

granted summary judgment in favor of defendants on all grounds in July 2007 (Dkts. 97, 

101–02), and Mr. Penwell appealed (Dkt. 103). The Ninth Circuit affirmed on all issues 

except for one. See Penwell v. Holtgeertz, No. 07-35638 (9th Cir. July 7, 2010), located at

(Dkt. 114). During the pendency of Mr. Penwell’s appeal, the Ninth Circuit clarified that the 

“sincerity test,” not the “centrality test,” applied to a prisoner’s free-exercise claim. Id. at 3 

(citing Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008)). Because the district court 

had employed the centrality test, the Ninth Circuit vacated summary judgment on Mr. 

Penwell’s free-exercise claim and remanded for reconsideration under the sincerity test. Id. at 

4. The Ninth Circuit noted that “[e]ven if the district court concludes that the restrictions 

burdened Penwell’s free exercise rights, the restrictions may nonetheless be valid if they are 

‘reasonably related to legitimate penological interests.’” Id. at 4 n.2 (quoting Turner v. Safley, 

482 U.S. 78, 89 (1987)). 

On remand, this Court denied plaintiff’s IFP application and motion for appointed 

counsel, and requested supplemental briefing on Mr. Penwell’s free-exercise claim. (Dkts. 
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121, 124.) 

DISCUSSION 

 The Ninth Circuit remanded this matter so that the Court could apply the sincerity test to 

determine whether Mr. Penwell’s claim implicated the Free Exercise Clause and, if so, whether 

the restrictions on his free exercise where nonetheless valid under Turner. Defendants renew 

their motion for summary judgment on this remaining issue.4

 (Dkts. 81, 129.) 

The Court finds that Mr. Penwell’s free-exercise rights were implicated by the 

conditions of Ad-Seg housing that curtailed his ability to attend group prayer services and 

consult privately with a chaplain, and that the record is insufficiently developed with respect to 

whether these restrictions were nonetheless valid as reasonably related to legitimate 

penological interests. Furthermore, in accordance with Ninth Circuit authority the Court finds 

that Mr. Penwell placed defendants on notice of a RLUIPA claim in 2007 and in the recent 

supplemental briefing, and that the record is insufficiently developed as to whether the 

substantial burden on Mr. Penwell’s religious practices constituted the least restrictive means of 

furthering the government’s compelling interests.5

 So the parties may further develop the 

record and bring renewed dispositive motions, the Court recommends denying defendants’ 

motion for summary judgment, construing plaintiff’s opposition briefs to be motions to amend 

 

 4 Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence is 

viewed and reasonable inferences are drawn in the light most favorable to the nonmoving party. United States v. 

Johnson Controls, Inc., 457 F.3d 1009, 1013 (9th Cir. 2006). The nonmovant must do more than simply deny the 

veracity of everything offered or show a mere “metaphysical doubt as to the material facts.” Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see Fed. R. Civ. P. 56(c). The mere existence of a 

scintilla of evidence is likewise insufficient to create a genuine factual dispute. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986). 

 5 The Court declines to address Mr. Penwell’s claimed violation of the Establishment Clause (Dkt. 127, 

at 5) because the claim is not explained in his briefing and is not suggested by the record. 
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to add a RLUIPA claim and granting those motions, and granting plaintiff leave to file (a) an 

updated IFP application and (b) a motion for appointment of counsel. 

I. Free Exercise Clause: The Sincerity Test 

 In Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir. 2008), the Ninth Circuit clarified that 

the sincerity test determines whether the Free Exercise Clause applies to a prisoner’s claim. 

Thus, to implicate the Free Exercise Clause, a belief must be both “sincerely held” and “rooted 

in religious belief.” Id. at 884 (quoting Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)) 

(internal quotation marks removed). Mr. Penwell asserts that his free exercise of Catholicism 

was burdened by the conditions of Ad-Seg housing because he was not permitted to attend 

group prayer meetings and because he was not able to converse privately with a chaplain but 

instead had to communicate through the cell door. 

 The Court finds that the Free Exercise Clause is implicated by Mr. Penwell’s 

allegations. First, nothing in the record refutes the sincerity of Mr. Penwell’s Catholic faith. 

Second, Mr. Penwell’s claim is rooted in aspects of common practices for Catholics: group 

prayer and private consultation with religious officiants. Given his sincere belief that his 

religious practice was burdened by restrictive conditions in Ad Seg, Mr. Penwell has stated a 

valid free-exercise claim. 

II. Free Exercise Clause: Balancing the Turner Factors 

 “When a prison regulation impinges on inmates’ constitutional rights, the regulation is 

valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 

78, 89 (1987). Turner sets forth four factors to be balanced in determining whether a prison 

restriction is reasonably related to legitimate penological interests: 
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(1) Whether there is a “‘valid, rational connection’ between the prison 

regulation and the legitimate governmental interest put forward to justify it”; 

(2) Whether there are “alternative means of exercising the right that remain open 

to prison inmates”’; 

(3) Whether “accommodation of the asserted constitutional right” will “impact 

. . . guards and other inmates, and on the allocation of prison resources 

generally”; and 

(4) Whether there is an “absence of ready alternatives” versus the “existence of 

obvious, easy alternatives.” 

Turner, 482 U.S. at 89–90 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). While the 

first two Turner factors favor defendants, the record is insufficiently developed to evaluate the 

third and fourth Turner factors. 

 The first Turner factor requires the Court to evaluate whether there was a legitimate 

penological interest that is rationally related to the restrictions. Turner, 482 U.S. at 89. 

Defendants assert that their phone system cannot technologically enforce a phone block as 

restrictive as the one imposed by Mr. Penwell’s court order. Mr. Penwell had to be placed in 

Ad Seg so that they could physically monitor him to ensure that he called no one other than his 

attorney. Mr. Penwell does not contradict this factual assertion. The Court finds that the first 

Turner factor weighs heavily in favor of defendants. 

 Under the second Turner factor, the Court considers whether Mr. Penwell has 

“alternative means by which he can practice his religion” or is “denied all means of religious 

expression.” Ward v. Walsh, 1 F.3d 873, 876–77 (9th Cir. 1993). It is undisputed that Mr. 

Penwell had other means of practicing his religion. For example, as stated by Chaplain 

Shannon O’Donnell, all inmates, whether in the general population or in segregation, are able to 

receive reading materials through a chaplain or the mail, may meet one-on-one with pastoral 

staff, may take time for spiritual though solitary communion with God, may refrain from eating 
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meat on Fridays, and may give up a food item or other personal practice during Lent. (Dkt. 

132, at 2–3.) The jail facilities have various chaplains, including Catholic priests, pastoral 

ministers, and laypeople, who come in and meet with inmates at the inmates’ request. (Id. at 

2.) The second Turner factor also weighs in defendants’ favor. 

 Under the third prong of the Turner test, the Court considers the “impact [the] 

accommodation . . . will have on guards and other inmates, and on the allocation of prison 

resources generally.” Ward, 1 F.3d at 878 (citing Washington v. Harper, 494 U.S. 210, 225 

(1990)). Defendants contend that permitting Mr. Penwell group worship and private 

conversations with a chaplain would have required guarding dedicated just to him, which would 

have led to reassignment of duties, payment of overtime, and severe financial hardship. (Dkt. 

129, at 12; Dkt. 130, at 3.) Defendants do not, however, support these assertions with financial 

data, describe how Ad Seg housing is actually staffed, or explain why such an accommodation 

could not be met using existing staffing.6

 Mr. Penwell asserts, for example, that existing, 

“floater” guards could have escorted him, that none of the rooms used for church services or for 

private audiences contains a telephone, and that no officers attend group church services. 

(Dkt. 134, at 8.) Defendants also assert that allowing Mr. Penwell privileges not afforded 

other Ad-Seg inmates would have been seen by other inmates as preferential treatment and 

therefore would have constituted a security risk. The Court discounts the favoritism argument, 

since this effect “is present in every case that requires special accommodations for adherents to 

particular religious practices.” Ward, 1 F.3d at 878. The record is insufficiently developed to 

 

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cuts from 2009 to 2011. (Dkt. 131.) The Court finds this declaration to be irrelevant to answering whether 

accommodating Mr. Penwell’s requests from 2004 to 2007 would have affected the allocation of prison resources. 
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evaluate the third Turner factor. 

 Finally, the fourth Turner factor requires the Court to consider whether “there are ready 

alternatives to the prison’s current policy that would accommodate [Mr. Penwell] at de minimis 

cost to the prison.” Ward, 1 F.3d at 879. The “existence of obvious, easy alternatives may be 

evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison 

concerns.” Turner, 482 U.S. at 90. Defendants imply that it would be costly and impractical 

to accommodate any Ad-Seg inmate’s request to attend group prayer services or to consult 

privately with a chaplain but decline to support this position with any financial information or 

specifics. Mr. Penwell responds that because there are no telephones available in the rooms 

dedicated to group services and private meetings, there was no risk of his violating the court’s 

phone-block order, and there was only a de minimis cost of being escorted from one secure 

location to another. Neither party addresses whether Mr. Penwell posed a greater security risk 

that would require additional staffing, as might be suggested by his request to remain in Ad-Seg 

housing after the lift of the phone block; or little security risk that would require little additional 

attention, as might be suggested by defendants’ willingness to return him to the general 

population immediately after the lifting of the phone block. The record is insufficiently 

developed to evaluate the fourth Turner factor. 

 Because the Turner factors cannot be properly evaluated on the present record, the 

Court recommends denying defendants’ motion for summary judgment on the free-exercise 

claim with leave to renew defendants’ summary-judgment motion upon the presentation of 

additional information. 

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III. Amending the Complaint to Add a RLUIPA Claim 

Plaintiff raised a RLUIPA claim for the first time in 2007, when he filed his original 

opposition brief to defendants’ motion for summary judgment. (Dkt. 96, at 13.) Neither this 

Court nor the Ninth Circuit addressed the RLUIPA claim. (Dkts. 97, 101, 114.) Mr. Penwell 

renewed his RLUIPA claim in his recent supplemental brief. (Dkt. 127, at 3–5.) The Court 

recommends construing his 2007 and 2011 opposition briefs (Dkts. 96, 127) to be motions to 

amend his complaint to add a RLUIPA claim and granting those motions. See Fed. R. Civ. P. 

15(a) (providing that a court should “freely give leave” to amend a complaint “when justice so 

requires”); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (noting 

that the policy of granting leave to amend “is to be applied with extreme liberality”) (internal 

citation omitted). The Court also recommends affording the parties an opportunity to develop 

the record with respect to the RLUIPA claim. 

A. Notice of RLUIPA Claim 

Neither plaintiff’s Amended Complaint nor his denied motion to amend that complaint 

to add new defendants contains a RLUIPA claim. (Dkts. 26, 65.) Nonetheless, Mr. Penwell 

raised a RLUIPA claim in his 2007 opposition to summary judgment (Dkt. 96, at 13), and 

asserted a RLUPA claim in his recent supplemental brief (Dkt. 127, at 3–5). Under analogous 

circumstances, the Ninth Circuit remanded so that a district order could consider a pro se 

prisoner’s RLUIPA claim in the first instance. 

 In Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008), the Ninth Circuit held that a 

prisoner’s “RLUIPA claim was presented to the district court because his complaint and 

subsequent filings provided [defendants] with ‘fair notice’ of that claim, even though the statute 
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was not cited in the complaint itself.” That is, “a complaint’s failure to cite RLUIPA does not 

preclude a plaintiff from subsequently asserting a claim based on that statute. . . . [I]t is 

sufficient that the complaint, alone or supplemented by any subsequent filings before summary 

judgment, provide the defendant fair notice that the plaintiff is claiming relief under RLUIPA 

as well as the First Amendment.” Id. at 1159. 

 Although Mr. Penwell first raised his RLUIPA claim during summary judgment 

proceedings in 2007—and the Court, the Ninth Circuit, and defendants could reasonably 

decline consideration of the RLUIPA claim for that reason alone—it would not serve the 

interests of justice to decline addressing the RLUIPA claim four years later given the continued 

vitality of plaintiff’s more difficult-to-establish First Amendment claim. Defendants were first 

put on notice of a RLUIPA claim in 2007; Mr. Penwell renewed his RLUIPA claim in 2011; 

and defendants have argued against Mr. Penwell’s First Amendment claim by exploring, 

at-length, RLUIPA’s statutory term-of-art “substantial burden.” (Dkt. 129, at 6–8).7

 The Court recommends construing Mr. Penwell’s opposition briefs to be motions to 

amend the complaint to add a RLUIPA claim, and granting Mr. Penwell’s motions to amend the 

complaint. 

 B. Questions Raised by the RLUIPA Claim 

 Defendants have not yet had the opportunity to develop the record and to respond to Mr. 

Penwell’s claim under RLUIPA, a statutory scheme that is “the latest of long-running 

 

 7 Defendants quote and discuss the definition of “substantial burden” in Navajo Nation v. U.S. Forest 

Service, 535 F.3d 1058 (9th Cir. 2008) , arguing that Mr. Penwell has failed to show such a substantial burden. 

(Dkt. 129, at 6–8.) Navajo Nation is not a First Amendment case. It is a case under RLUIPA’s predecessor 

statute, the Religious Freedom Restoration Act (“RFRA”), which contains the same “substantial burden” language 

as the RLUIPA. 
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congressional efforts to accord religious exercise heightened protection from 

government-imposed burdens . . . .” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005). The 

Ninth Circuit has noted that Congress has effectuated its intent to broadly protect religious 

exercise by distinguishing RLUIPA from traditional First Amendment jurisprudence in at least 

two ways: 

First, it expanded the reach of the protection to include any “religious exercise,” 

including “any exercise of religion, whether or not compelled by or central to, a 

system of religious belief.” In fact, RLUIPA “bars inquiry into whether a 

particular belief or practice is ‘central’ to a prisoner's religion.” Second, as 

opposed to the deferential rational basis standard of Turner v. Safley, RLUIPA 

requires the government to meet the much stricter burden of showing that the 

burden it imposes on religious exercise is “in furtherance of a compelling 

governmental interest; and is the least restrictive means of furthering that 

compelling governmental interest.” 

Greene v. Solano County Jail, 513 F.3d 982, 986 (2008) (citations omitted); see also 

Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). The RLUIPA provides, in 

relevant part, that “[n]o government shall impose a substantial burden on the religious exercise 

of a person residing in or confined to an institution . . . even if the burden results from a rule of 

general applicability,” unless the government establishes that the burden furthers “a compelling 

governmental interest,” and does so by “the least restrictive means.” 42 U.S.C. 

§ 2000cc-1(a)(1)–(2). 

 The undisputed record shows that Mr. Penwell’s factual allegations meet the threshold 

of showing that his religious exercise—i.e., ability to join in group prayer and to consult 

privately with a chaplain—has been substantially burdened by defendants’ general rule 

prohibiting Ad-Seg inmates from participating in such activities. In Greene v. Solano County, 

the Ninth Circuit rejected the prison’s attempt to define “religious exercise” more broadly to 
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mean “practice of one’s religion, rather than any particular practice within one’s religion.” 

Greene, 513 F.3d at 987. The Greene court therefore accepted that the “religious exercise” at 

issue was group worship, not Christianity in general. Id. at 988. The Ninth Circuit then held 

that it had “little difficulty” in concluding that the jail’s policy of prohibiting a maximum 

security prisoner from attending group worship services substantially burdened his ability to 

exercise his religion. Id. Similarly, here Mr. Penwell asserts that an outright ban on his 

religious practices of group worship and private consultation have been substantially burdened 

by the jail’s policy of disallowing such religious activities for all Ad-Seg inmates. 

 Because of the lawsuit’s procedural posture, the record is inadequately developed as to 

the next step of an inquiry into an alleged RLUIPA violation: whether defendants can establish 

that the substantial burden furthers “a compelling governmental interest,” and does so by “the 

least restrictive means.” 42 U.S.C. § 2000cc-1(a); 42 U.S.C. § 2000cc-2(b); Greene, 513 F.3d 

at 988. The Court recommends that defendants be afforded the opportunity to develop the 

record further and to renew their motion for summary judgment. 

IV. IFP Application and Motion to Appoint Counsel 

 The Court earlier denied Mr. Penwell’s IFP application because his prison account 

showed an average spendable balance of $1,719, he referred to an unspecified amount of 

income from a legal settlement, and he stated that he was hiring private counsel for a pending 

habeas corpus petition. (Dkt. 124; see Dkts. 121–23.) The Court also denied Mr. Penwell’s 

motion to appoint counsel because the record suggested neither complexity nor a likelihood of 

success on the merits. (Dkt. 124, at 2; see Dkt. 121, at 1–2.) The parties’ briefs demonstrate 

that the Court has good cause for revisiting these conclusions. 
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 The Court has discretion to appoint counsel for indigent civil litigants pursuant to 28 

U.S.C. § 1915(e)(1), but an appointment of counsel should only be granted under “exceptional 

circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). 

“When determining whether “exceptional circumstances” exist, the Court considers “the 

likelihood of success on the merits as well as the ability of the petitioner to articulate his claims 

pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 

952, 954 (9th Cir. 1983). The present record suggests that exceptional circumstances may 

exist: there is a genuine issue of material fact about the First Amendment claim; there is no 

indication, as yet, that the jail investigated whether an outright ban on group worship and 

private religious consultations for Ad-Seg inmates constituted the “least restrictive means” for 

effectuating a compelling governmental interest; and further discovery may be necessary 

before the submission of dispositive motions. 

The Court recommends granting plaintiff leave to file within thirty days of the order 

adopting this Report and Recommendation (a) an updated application to proceed in forma 

pauperis and (b) a renewed motion for appointment of counsel. 

CONCLUSION 

 The Court recommends as follows: (1) DENYING defendants’ motion for summary 

judgment (Dkts. 81, 129); (2) CONSTRUING plaintiff’s opposition briefs in 2007 (Dkt. 96) 

and 2011 (Dkt. 127) to be motions to amend the complaint to add a RLUIPA claim and 

GRANTING the motions to amend; and (3) GRANTING plaintiff leave to file (a) an updated 

application to proceed in forma pauperis and (b) a renewed motion for appointment of counsel. 

Plaintiff should file his updated application to proceed in forma pauperis and renewed motion 
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for appointment of counsel within thirty (30) days of the date of the order adopting this Report 

and Recommendation. A proposed order is attached.

 DATED this 15th day of July, 2011. 

A

Mary Alice Theiler 

United States Magistrate Judge