DiMaio v. County of Snohomish et al

Filing 14

ORDER granting Plaintiff's 12 Motion for extension to time to respond to Defendants' motion to dismiss 8 ; denying Plaintiff's 13 Motion to Appoint Counsel. Plaintiff's response to motion to dismiss due 5/22/2017; Reply due 5/26/2017. Clerk directed to renote Defendants' 8 Motion to Dismiss for 5/26/2017. Signed by Judge James L. Robart. (PM) cc: Plaintiff via the USPS

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 RICHARD DIMAIO, 10 CASE NO. C17-0128JLR ORDER Plaintiff, 11 v. 12 COUNTY OF SNOHOMISH, et al., 13 Defendants. 14 15 I. INTRODUCTION Before the court are Plaintiff Richard DiMaio’s motion to extend the time to 16 17 respond to Defendants County of Snohomish (“the County”) and Sheriff Ty Trenary’s 18 motion to dismiss (MTE (Dkt. # 12)) and motion to appoint counsel (MTA (Dkt. # 13)). 19 The court has considered Mr. DiMaio’s motions, the relevant portions of the record, and 20 // 21 // 22 // ORDER - 1 1 the applicable law. Being fully advised,1 the court grants Mr. DiMaio’s motion to extend 2 and denies Mr. DiMaio’s motion to appoint counsel for the reasons set forth below. 3 II. 4 BACKGROUND Mr. DiMaio, who is proceeding pro se and in forma pauperis, filed this lawsuit on 5 January 30, 2017. (IFP Mot. (Dkt. # 1); IFP Order (Dkt. # 2).) The suit arises from Mr. 6 DiMaio’s termination from the Snohomish County Sheriff’s Office on February 3, 2015. 7 (Compl. (Dkt. # 3) ¶ 13.) Mr. DiMaio asserts claims under 42 U.S.C. § 1983 for (1) 8 deprivation of “presumptively continuing government employment without furnishing to 9 [Mr.] DiMaio a meaningful post-termination opportunity to bring to a neutral fact finder 10 testimonial evidence of his innocence and the falsity of accusations against him” (id. at 11 3), (2) violation of his “First Amendment right to access legal counsel and the legal 12 process to redress matters of public concern involving unconstitutional action” (id. ¶ 23), 13 and (3) violation of his Fourteenth Amendment right to equal protection of the law (id. 14 ¶ 24). Mr. DiMaio also appears to assert a claim against the County under Monell v. 15 Department of Social Services of City of New York, 436 U.S. 658 (1978), for the alleged 16 constitutional violations. (Id. ¶ 22.) As a result of Defendants’ actions, Mr. DiMaio 17 alleges that he has “experienced financial loss, job and career loss, [and] emotional pain, 18 fear, and anxiety.” (Id. ¶ 25.) 19 // 20 21 22 1 Mr. DiMaio did not request oral argument on either of his motions, and the court determines that oral argument would not aid the court’s disposition of the motions. See Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 On April 6, 2017, Defendants filed a motion to dismiss Mr. DiMaio’s complaint 1 2 pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) or for a more definite 3 statement pursuant to Federal Rule of Civil Procedure 12(e). (See MTD (Dkt. # 8).) 4 Defendants properly noted their motion to dismiss for May 5, 2017. (See id.); Local 5 Rules W.D. Wash. LCR 7(d)(3) (stating that motions to dismiss “shall be noted for 6 consideration on a date no earlier than the fourth Friday after filing and service of the 7 motion”). On May 1, 2017, the day that Mr. DiMaio’s response to the motion to dismiss 8 was due, see Local Rules W.D. Wash. LCR 7(d)(3), Mr. DiMaio instead filed a motion to 9 extend the time for him to respond and a motion to appoint counsel (see MTE; MTA). 10 The court now considers those motions. 11 12 13 III. A. ANALYSIS Motion to Extend Time Mr. DiMaio requests that the court extend his time to respond to Defendants’ 14 motion to dismiss because he requests court-appointed counsel “[d]ue to the complexity 15 of the case” and will need “more time . . . to con[sult] counsel ([i]f granted) to receive 16 legal guidance to the motion(s) filed by the defense.” (MTE at 1.) Although the court 17 denies Mr. DiMaio’s motion to appoint counsel, see infra § III.B, the court nevertheless 18 grants Mr. DiMaio’s request for an extension of time to respond to Defendants’ motion. 19 In light of Mr. DiMaio’s pro se status and the lack of apparent prejudice to Defendants 20 from a minor extension, the court will allow Mr. DiMaio until May 22, 2017, to respond 21 to the motion to dismiss. The court cautions Mr. DiMaio that even though he is 22 proceeding pro se, he is responsible for complying with all applicable rules. See King v. ORDER - 3 1 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of 2 procedure that govern other litigants.”), overruled on other grounds by Lacey v. 3 Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012); Local Rules W.D. Wash. LCR 7(j) 4 (“A motion for relief from a deadline should, whenever possible, be filed sufficiently in 5 advance of the deadline to allow the court to rule on the motion prior to the deadline. 6 Parties should not assume that the motion will be granted and must comply with the 7 existing deadline unless the court orders otherwise.”). The court further cautions Mr. 8 DiMaio that it will not grant an additional extension of time to respond to the motion 9 absent extraordinary circumstances. 10 11 B. Motion to Appoint Counsel Mr. DiMaio also requests that the court appoint counsel to assist him with his case. 12 (MTA at 1.) This District has implemented a plan for court-appointed representation of 13 civil rights litigants. The plan requires the court to assess a plaintiff’s case before 14 forwarding it to the Pro Bono Screening Committee for further review and possible 15 appointment of pro bono counsel. See General Order, August 1, 2010, Section 3(c) (In re 16 Amended Plan for the Representation of Pro Se Litigants in Civil Rights Actions). In its 17 initial assessment, the court evaluates the case to determine that it is not frivolous and 18 that the plaintiff is financially eligible. Id. Although the court has “discretion to 19 designate counsel to represent an indigent civil litigant,” Wilborn v. Escalderon, 789 F.2d 20 1328, 1331 (9th Cir. 1986); see also 28 U.S.C. § 1915(e)(1), the court may only do so in 21 “exceptional circumstances,” Wilborn, 789 F.2d at 1331; see also Agyeman v. Corr. 22 Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). The court may find exceptional ORDER - 4 1 circumstances after evaluating “the likelihood of success on the merits” and “the ability 2 of the petitioner to articulate his claims pro se in light of the complexity of the legal 3 issues involved.” Wilborn, 789 F.2d at 1331. The court must analyze both of these 4 factors together before deciding whether to appoint counsel under Section 1915(e)(1). 5 See id. The plaintiff seeking counsel bears the burden of demonstrating exceptional 6 circumstances. Brogdon v. City of Phoenix Police Dep’t, 7 No. CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D. Ariz. June 19, 2013). 8 9 The court concludes that Mr. DiMaio’s submissions do not support referring Mr. DiMaio’s case to the Pro Bono Screening Committee for further review or a finding of 10 exceptional circumstances that warrant appointing counsel. Mr. DiMaio makes no 11 argument as to the likelihood of success on the merits of his claims (see MTA), and after 12 conducting an independent review, the court cannot say that Mr. DiMaio is likely to 13 succeed on the merits of his claim (see Compl.); Wilborn, 789 F.2d at 1331; General 14 Order, August 1, 2010, Section 3(c).2 Because Mr. DiMaio “provides no evidence of his 15 likelihood of success at trial[, he] fails to satisfy the first factor of the test.” Torbert v. 16 Gore, No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). 17 In addition, despite Mr. DiMaio’s characterization of this case as “complex[]” 18 (MTE at 1), the court finds that any difficulty Mr. DiMaio will experience in litigating his 19 case does not stem “from the complexity of the issues involved,” Wilborn, 789 F.2d at 20 21 22 The court expresses no opinion regarding Defendants’ motion to dismiss. See Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991) (stating that district courts may not dismiss a pro se plaintiff’s complaint prior to ruling on his motion for appointment of counsel). 2 ORDER - 5 1 1331. That Mr. DiMaio might find “it difficult to articulate his claims pro se” is 2 insufficient to demonstrate that his case involves complex legal issues. Wilborn, 789 3 F.2d at 1331; see also Garcia v. C.D.C.R., No. 12cv1084 IEG (KSC), 2013 WL 485756, 4 at *1 (S.D. Cal. Feb. 6, 2013) (noting that exceptional circumstances are not shown even 5 though there is “no doubt [that] most pro se litigants find it difficult to articulate their 6 claims and would be better served with the assistance of counsel”). Indeed, the 7 constitutional claims that Mr. DiMaio alleges are relatively straightforward. (See Compl. 8 ¶¶ 22-25; see also id. at 3.) Accordingly, Mr. DiMaio fails to meet his burden of 9 establishing exceptional circumstances that warrant the appointment of counsel.3 See 10 Wilborn, 789 F.2d at 1331; Brogdon, 2013 WL 3155116, at *1. 11 12 IV. CONCLUSION For the reasons set forth above, the court GRANTS Mr. DiMaio’s motion to 13 extend the time to respond to Defendants’ motion to dismiss (Dkt. # 12) and DENIES 14 Mr. DiMaio’s motion to appoint counsel (Dkt. # 13). Mr. DiMaio must file his response 15 to Defendants’ motion to dismiss no later than Monday, May 22, 2017. Defendants must 16 file their reply, if any, no later than Friday, May 26, 2017. Accordingly, the court 17 DIRECTS the Clerk to renote Defendants’ motion to dismiss (Dkt. # 8) for May 26, 18 2017. The parties’ filings must otherwise conform to the Local Civil Rules for the 19 Western District of Washington, which can be found on the Western District of 20 3 21 22 Mr. DiMaio may access materials to assist pro se litigants on the Western District of Washington’s website. See Representing Yourself (“Pro Se”), W. DIST. OF WASH., http://www.wawd.uscourts.gov/representing-yourself-pro-se; E-Pro Se, W. DIST. OF WASH., http://www.wawd.uscourts.gov/pro-se/e-pro-se. ORDER - 6 1 Washington’s website. Local Civil Rules for the Western District of Washington, W. 2 DIST. OF WASH., http://www.wawd.uscourts.gov/sites/wawd/files/WAWDAllLocal 3 CivilRules-2017.pdf. 4 Dated this 9th day of May, 2017. 5 6 A 7 JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?