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)

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