Harris v. UBH of Oregon, LLC

Filing 18

OPINION AND ORDER: Plaintiff's motion for appointment of pro bono counsel 16 is DENIED. Signed on 5/30/2018 by Judge Ann L. Aiken. A copy of this Opinion and Order was mailed to pro se plaintiff David B. Harris. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

Case No. 3:17-cv-01296-AA
OPINION AND ORDER

DAVID HARRIS,
Plaintiff,
vs.
UBH OF OREGON, LLC, dba Cedar Hills
Hospital,
Defendant.

AIKEN, Judge:
Plaintiff David Harris, proceeding pro se and in forma pauperis, filed the amended
complaint in this diversity action on October 20, 2017. Plaintiff asse1ied claims of intentional
infliction of emotional distress ("IIED") and defamation against his former employer, defendant
UBH of Oregon, LLC.

I dismissed his IIED claim with prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), but permitted his defamation claim to proceed. The clerk's office mailed a
copy of that ruling to plaintiff, but it was returned as undeliverable, stamped "insufficient
address." See Doc. 12.

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On April 3, 2018, I issued an Order to Show Cause directing plaintiff to state in writing
why this case should not be dismissed for failure to serve defendant within the time limit
provided in Federal Rule of Civil Procedure 4(m). Plaintiff filed a written response to that order
stating that he never received a copy of the ruling permitting his amended complaint to proceed.
That same day, plaintiff began the process for serving defendant. He also filed a motion for
appointment of pro bono counsel.
Having reviewed plaintiff's response to the Order to Show Cause, I decline to dismiss
this action at this time. I note, however, that plaintiff's mailing address does not appear to have
changed since mail sent to that address was returned as undeliverable. Plaintiff is advised to
look into any issues with mail delivery so that he will be certain to receive court mailings in the
future.
I turn next to plaintiff's motion for appointment of pro bono counsel. Appointment of
counsel in civil cases is rare.
Generally, a person has no right to counsel in civil actions. However, a court may
under exceptional circumstances appoint counsel for indigent civil litigants
pursuant to 28 U.S.C. § 1915(e)(l). When determining whether exceptional
circumstances exist, a comt must consider the likelihood of success on the merits
as well as the ability of the petition to mticulate his claims pro se in light of the
complexity of the legal issues involved.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citations and internal quotation marks

omitted). Here, there are no exceptional circumstances justifying the appointment of pro bono
counsel. It is difficult to evaluate plaintiff's chance of success on his claim at this stage of the
proceeding, when defendant has not filed an answer and there has been no discovery. However,
even if plaintiff's likelihood of success is high, his single claim for defamation is not legally
complex.

Rather, its resolution will hinge primarily on questions of fact like whether

defendant's policy required clocking in at the start of a shift. The absence of legal complexity
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weighs against appointment of counsel. In addition, plaintiff was able to amend his complaint to
cure deficiencies, suggesting that he has the ability to atiiculate his claims pro se. Plaintiffs
motion for appointment of pro bona counsel (doc. 16) is denied.
IT IS SO ORDERED.
Dated this 3i::?day of May 2018.

Ann Aiken
United States District Judge

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