DiMaio v. County of Snohomish et al

Filing 37

ORDER denying Plaintiff's 36 Second Motion to Appoint Counsel signed by Judge James L. Robart. (PM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 RICHARD DIMAIO, CASE NO. C17-0128JLR ORDER DENYING SECOND MOTION TO APPOINT COUNSEL Plaintiff, 11 v. 12 13 COUNTY OF SNOHOMISH, et al., Defendants. 14 15 I. INTRODUCTION 16 Before the court is Plaintiff Richard DiMaio’s second motion to appoint counsel. 17 (2d MTA (Dkt. # 36).) The court has considered the motion, the relevant portions of the 18 record, and the applicable law. Being fully advised,1 the court denies the motion for the 19 reasons set forth below. 20 21 22 1 Mr. DiMaio did not request oral argument on the motion, and the court finds that it would not be helpful to the court’s disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 1 1 2 II. BACKGROUND & ANALYSIS Mr. DiMaio, who is proceeding pro se and in forma pauperis, filed this lawsuit 3 against Snohomish County and Sheriff Ty Trenary (collectively, “Defendants”) on 4 January 30, 2017. (IFP Mot. (Dkt. # 1); IFP Order (Dkt. # 2).) The suit arises from Mr. 5 DiMaio’s termination from the Snohomish County Sheriff’s Office on February 3, 2015. 6 (Am. Compl. (Dkt. # 22) ¶ 13.) The court denied Mr. DiMaio’s first motion to appoint 7 counsel after finding that Mr. DiMaio had not made the required showings. (See 5/9/17 8 Order (Dkt. # 14) at 3, 6.) On August 2, 2017, the court granted Defendants’ motion to 9 dismiss Mr. DiMaio’s original complaint for failure to state a claim and granted him 10 leave to amend. (8/2/17 Order (Dkt. # 20).) Mr. DiMaio timely amended his complaint, 11 alleging violations of his First, Fifth, and Fourteenth Amendment rights pursuant to 42 12 U.S.C. § 1983 and a breach of contract claim. (Am. Compl. ¶¶ 18-24.) He seeks 13 damages, injunctive relief, and attorney’s fees. (See id. ¶ 25.) 14 Mr. DiMaio once again requests that the court appoint counsel to assist him with 15 his case.2 (2d MTA at 2.) The Western District of Washington has implemented a plan 16 for court-appointed representation of civil rights litigants. See General Order, August 1, 17 2010, Section 3(c) (In re Amended Plan for the Representation of Pro Se Litigants in 18 Mr. DiMaio makes his request in a second response to Defendants’ second motion to dismiss. (See Dkt.) Because the court must liberally construe the filings of pro se litigants, Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990), the court treats the response as a motion to appoint counsel (see Dkt.). The court notes, however, that in addition to failing to demonstrate a basis for appointing counsel, see infra, Mr. DiMaio’s recent filings suggest that he may have received legal counsel in drafting his latest complaint (see generally Am. Compl. (listing “Michael A. Jacobson, P.S., Inc.” in the footer of the amended complaint); MTA at 1 (“The complaint in its entirety (Completed by Attorney at law Mike Jacobson).”)). This fact also cuts against granting the motion. 2 19 20 21 22 ORDER - 2 1 Civil Rights Actions). The plan requires the court to assess a plaintiff’s case before 2 forwarding it to the Pro Bono Screening Committee for further review and possible 3 appointment of pro bono counsel. Id. In its initial assessment, the court evaluates the 4 case to determine that it is not frivolous and that the plaintiff is financially eligible. Id. 5 Although the court has “discretion to designate counsel to represent an indigent civil 6 litigant,” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); see also 28 U.S.C. 7 § 1915(e)(1), the court may only do so in “exceptional circumstances,” Wilborn, 789 F.2d 8 at 1331; see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). 9 The court may find exceptional circumstances after evaluating “the likelihood of success 10 on the merits” and “the ability of the petitioner to articulate his claims pro se in light of 11 the complexity of the legal issues involved.” Wilborn, 789 F.2d at 1331. The court must 12 analyze both of these factors together before deciding whether to appoint counsel under 13 28 U.S.C. § 1915(e)(1). See id. The party seeking counsel bears the burden of 14 demonstrating exceptional circumstances. Brogdon v. City of Phoenix Police Dep’t, 15 No. CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D. Ariz. June 19, 2013). 16 As with Mr. DiMaio’s first motion, his submissions do not support referring the 17 case to the Pro Bono Screening Committee for further review or a finding of exceptional 18 circumstances that warrant appointing counsel. Mr. DiMaio makes no argument as to the 19 likelihood of success on the merits of his claims (see 2d MTA), and after conducting an 20 independent review, the court cannot say that Mr. DiMaio is likely to succeed on the 21 merits of his claim (see Am. Compl.); Wilborn, 789 F.2d at 1331; General Order, August 22 ORDER - 3 1 1, 2010, Section 3(c).3 Instead, Mr. DiMaio argues that his case amounts to “a modern 2 day case of David and Goliath, in where the strong push around the small and weak.” (2d 3 MTA at 2.) Because Mr. DiMaio “provides no evidence of his likelihood of success at 4 trial[, he] fails to satisfy the first factor of the test.” Torbert v. Gore, No. 14-cv-2991 5 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). 6 In addition, despite Mr. DiMaio’s focus on the uneven resources between 7 Defendants and him (2d MTA at 1-2), the court finds that any difficulty Mr. DiMaio will 8 experience litigating his case does not stem “from the complexity of the issues involved,” 9 Wilborn, 789 F.2d at 1331. The fact that Mr. DiMaio might find “it difficult to articulate 10 his claims pro se” is insufficient to demonstrate that his case involves complex legal 11 issues. Wilborn, 789 F.2d at 1331; see also Garcia v. C.D.C.R., No. 12cv1084 IEG 12 (KSC), 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013) (noting that exceptional 13 circumstances are not shown even though there is “no doubt [that] most pro se litigants 14 find it difficult to articulate their claims and would be better served with the assistance of 15 counsel”). Indeed, the constitutional claims that Mr. DiMaio alleges are relatively 16 straightforward, particularly after the court’s extensive order detailing the deficiencies in 17 his first complaint. (See Am. Compl. ¶¶ 18-24; see also 8/2/17 Order at 13-21 18 (discussing the shortcomings in Mr. DiMaio’s first complaint and granting leave to 19 amend).) Accordingly, Mr. DiMaio fails to meet his burden of establishing exceptional 20 The court expresses no opinion regarding the merits of Defendants’ second 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); (2d MTD (Dkt. # 32).) 3 21 22 ORDER - 4 1 circumstances that warrant the appointment of counsel.4 See Wilborn, 789 F.2d at 1331; 2 Brogdon, 2013 WL 3155116, at *1. 3 Dated this 26th day of October, 2017. 4 5 A 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 4 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 - 5

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