Kelbessa v. City of Seattle et al

Filing 23

ORDER denying plaintiff's 7 Motion for Extension of Time; denying plaintiff's 2 Motion to Appoint Counsel; case is dismissed without leave to amend his amended complaint by Judge Richard A Jones.(RS) cc plaintiff

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BERHANU G. KELBESSA,
Plaintiff,

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v.

Defendants.

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I.

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INTRODUCTION

This matter comes before the Court on Plaintiff Berhanu G. Kelbessa’s Amended
Complaint (Dkt. ## 20, 21), Motion to Appoint Counsel (Dkt. # 2), and Motion for
Extension of Time (Dkt. # 7). For the reasons that follow, the Court DENIES his motion
to appoint counsel, DENIES as moot his motion for extension of time, and DISMISSES
without leave to amend his amended complaint.

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ORDER

CITY OF SEATTLE, et al.,

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Case No. C17-323-RAJ

II. BACKGROUND
On March 1, 2017, Kelbessa filed this action alleging that Defendants have
committed a broad array of civil rights violations. Dkt. # 1-1. In doing so, Kelbessa

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submitted an application to proceed in forma pauperis. Dkt. # 1. The Honorable Brian

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A. Tsuchida granted his application. Dkt. # 3.

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On April 5, 2017, the Court dismissed Kelbessa’s complaint. The Court did so

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pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the Court to dismiss the complaint

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of an in forma pauperis plaintiff if that complaint fails to state a claim. In dismissing

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ORDER – 1

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Kelbessa’s complaint, the Court granted leave to amend. Kelbessa has since submitted
eleven letters. The Court construes these letters as Kelbessa’s amended complaint.
III. DISCUSSION

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A.

Motion to Appoint Counsel

This is a civil action where, as a general matter, a plaintiff does not have a right to
counsel. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In certain cases,
“exceptional circumstances” may warrant the appointment of counsel. Agyeman v.

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Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of exceptional
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circumstances requires an evaluation of both ‘the likelihood of success on the merits and
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the ability of the petitioner to articulate his claims pro se in light of the complexity of the
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legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
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(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
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The Court finds that no exceptional circumstances warrant the appointment of
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counsel because Kelbessa is unlikely to succeed on the merits. Kelbessa’s letters, which
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the Court construes as his amended complaint, contain sprawling, largely
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incomprehensible allegations of abuse and enslavement. He requests vast sums of money
in damages. See, e.g., Dkt. # 21-3 ($12,980,154,000,000). Neither these allegations nor
the remainder of facts alleged in Kelbessa’s eleven letters demonstrate that Kelbessa is
reasonably likely to prevail on the merits. Because no exceptional circumstances warrant
the appointment of counsel, Kelbessa’s motions are denied.
B.

Amended Complaint

The Court’s authority to grant in forma pauperis status derives from 28 U.S.C.
§ 1915. The Court is required to dismiss an in forma pauperis plaintiff’s case if the Court
determines that “the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it
lacks a basis in law or fact. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A
complaint fails to state a claim if it does not “state a claim to relief that is plausible on its
ORDER – 2

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007).
As noted, the Court previously dismissed Kelbessa’s complaint with leave to
amend because the complaint failed to state a claim upon which relief could be granted.
In doing so, the Court stated, “If Kelbessa fails to timely comply with this Order by filing
an amended complaint that sufficiently addresses the deficiencies noted above, the Court
will dismiss this action without leave to amend.” Dkt. # 16.
He has since amended his complaint. His amended complaint, however, fails to
correct the deficiencies identified by the Court. Kelbessa alleges a conclusory,
incomprehensible array of abuses, including enslavement, violence, economic harm,
neglect, and psychological abuse. He alleges trillions of dollars in damages. These
allegations lack any conceivable basis in fact and fail to state a plausible claim.
Accordingly, Kelbessa’s complaint is frivolous and fails to state a valid claim for relief.
The Court DISMISSES Kelbessa’s complaint without leave to amend. Lucas v. Dep’t
of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (dismissal without leave to amend is proper
where “it is absolutely clear that no amendment can cure the defect”).
C.

Motion for Extension of Time

Kelbessa requests additional time to serve Defendants. Dkt. # 7. Given the
Court’s foregoing analysis, the Court DENIES that motion as moot.

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IV. CONCLUSION
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For the reasons stated above, the Court DENIES Kelbessa’s Motion to Appoint
Counsel (Dkt. # 2), DENIES as moot his Motion for Extension of Time (Dkt. # 7), and
DISMISSES without leave to amend his amended complaint (Dkt. ## 20, 21).
DATED this 28th day of April, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3