Lake-Seibert v. Brennan

Filing 17

ORDER denying pltf's 10 Second Motion to Appoint Counsel ; denying as moot dft's 12 Motion to Dismiss for Failure to State a Claim; granting pltf's 15 Motion to Amend Complaint by Judge Richard A Jones.(RS)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KIMBERLY S. LAKE-SEIBERT,

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Plaintiff,
CASE NO. C15-925RAJ
v.
ORDER
MEGAN J. BRENNAN, in her capacity as
Postmaster General of the United States,
Defendant.

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I.

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INTRODUCTION

This matter comes before the Court on Plaintiff Kimberly S. Lake-Siebert’s

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(“Plaintiff”) second Motion for the Appointment of Counsel (Dkt. # 10), Defendant

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Megan J. Brennan’s (“Defendant”) Motion to Dismiss (Dkt. # 12) and Plaintiff’s Motion

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for Leave of Court to Amend Complaint (Dkt. # 15). For the reasons set forth below,

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Plaintiff’s second Motion for the Appointment of Counsel (Dkt. # 10) is DENIED, her

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Motion for Leave of Court to Amend Complaint (Dkt. # 15) is GRANTED, and

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Defendant’s Motion to Dismiss is DENIED as MOOT.
II.

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DISCUSSION

Plaintiff brings claims against the United States Postal Service (“USPS”) alleging,

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inter alia, that she was discriminated against on the basis of her sex. See Dkt. # 4

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(Compl.) at 2. She claims that she was treated differently from her male counterparts,

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that her supervisor forged her time cards, and that she was forced to work a shift even

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ORDER – 1

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after being involved in a car accident and in direct contravention to her doctor’s orders.

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Id. As a result, Plaintiff now seeks damages totaling $355,000, to have the Attorney

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General prosecute the sixteen alleged acts of forgery, and attorneys’ fees and costs. See

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id. at 3.

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a. Plaintiff’s Motion for the Appointment of Counsel

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There is no right to appointed counsel in civil cases. In civil cases involving

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litigants proceeding in forma pauperis, the court has discretion to appoint counsel, but

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only in exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009);

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28 U.S.C. § 1915(e). The court must consider the likelihood that the litigant will succeed

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on the merits as well as the litigant’s ability to articulate his claims in light of their

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complexity. Palmer, 560 F.3d at 970. Neither of these considerations “is dispositive

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and instead must be viewed together.” Id.
This Court finds that the legal issues in this case are not complex and that Plaintiff

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has shown that she is sufficiently capable of adequately articulating her claims and, in

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fact, has done an admirable job in adhering to this Court’s rules and procedures. 1 The

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Court declines to engage in a full on discussion of Plaintiff’s likelihood of success, given

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that a motion to dismiss is pending and Plaintiff has sought to amend her complaint.

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Nevertheless, the Court notes, as it noted in its earlier Order (Dkt. # 8 at 2), that

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Plaintiff’s failure to timely exhaust her administrative remedies poses a serious threat to

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the viability of any claims.
Accordingly, the Court DENIES Plaintiff’s motion. Dkt. # 10.

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Plaintiff’s second motion also suggests that she already has access to legal counsel. Plaintiff
states that she attended a “redress meeting” in January 2015 with “[her] friend who is an attorney
in Bellingham, David Kennedy.” See Dkt. # 10 at 5. Plaintiff further states that the week after
the “redress meeting,” “Scott Manier sent David Kennedy, my Bellingham attorney, (who is not
a federal attorney)” allegedly forged timecards. Id. at 6. Finally, Plaintiff says that “Joan from
the EEO” told her that “[she] had the right to a free attorney.” Id.
Any attorney who is a member in good standing of the Washington State Bar is eligible for
admission to practice in this Court. See http://www.wawd.uscourts.gov/attorneys/admissions. If
Mr. Kennedy remains willing to represent Plaintiff, he is welcome to apply for admission to
practice before this Court.

ORDER – 2

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The Court advises Plaintiff that as a pro se litigant, she is responsible for pursuing

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her claims, including meeting court deadlines and complying with the Court’s local rules.

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She will find resources for pro se parties, including the Court’s local rules, at the Court’s

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website, at www.wawd.uscourts.gov.

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b. Plaintiff’s Motion for Leave to Amend

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Apparently in a second response to Defendant’s Motion to Dismiss (Dkt. # 12),

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Plaintiff filed a Motion for Leave to Amend (Dkt. # 15). Defendant does not oppose

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Plaintiff’s proposed amended complaint, but merely notes that Plaintiff raised these

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issues in opposition to Defendant’s Motion to Dismiss. See Dkt. # 16 at 1-2.
Federal Rule of Civil Procedure 15(a)(1)(B) permits a party to amend a “pleading

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once as a matter of course within: . . . (B) if the pleading is one to which a responsive

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pleading is required, 21 days after service of a responsive pleading or 21 days after

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service of a motion under Rule 12(b) . . . .” Of course, Plaintiff filed her motion 29 days

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after service of Defendant’s Rule 12(b)(6) motion to dismiss (see Dkt. # 12 & 15), but the

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Court is instructed to treat pro se parties “with great leniency” when evaluating their

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“compliance with the technical rules of civil procedure” (Draper v. Coombs, 792 F.2d

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915, 924 (9th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520 (1971); see also

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Wennihan v. AHCCCS, 515 F. Supp. 2d 1040, 1043 (D. Ariz. 2005) (“the involvement of

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a pro se litigant necessitates a liberal application of procedural requirements.”)).

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ORDER – 3

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In light of all this, the Court will GRANT Plaintiff’s Motion for Leave to Amend.

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Dkt. # 15. Plaintiff is instructed to file the proposed amended complaint labeled as

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Exhibit A to this Motion as a separate document. The Court will therefore DENY

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Defendant’s Motion to Dismiss at this time as MOOT. Dkt. # 12.

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DATED this 6th day of November, 2015.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 4