Bishop v. Valley Medical Center

Filing 6

ORDER dismissing Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) with leave to amend within 21 days of the filing of this order. The court further DENIES Ms. Bishop's motion to appoint counsel (Dkt. # 5 ). Signed by Judge James L. Robart. (PM) cc: plaintiff via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DEBRA BISHOP,

CASE NO. C18-0885JLR
ORDER DISMISSING ACTION
AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

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v.
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VALLEY MEDICAL CENTER,
Defendant.

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I.

INTRODUCTION

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Before the court are pro se Plaintiff Debra Bishop’s complaint against Valley

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Medical Center (see Compl. (Dkt. # 4)); Magistrate Judge Brian A. Tsuchida’s order

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granting Ms. Bishop in forma pauperis (“IFP”) status and recommending that the court

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review her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (IFP Order (Dkt. # 3) at 1);

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and Ms. Bishop’s motion to appoint counsel (MTA (Dkt. # 5)). The court first concludes

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that Ms. Bishop has not met her burden of establishing the circumstances that warrant

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appointment of counsel. Thus, the court denies her motion to appoint counsel.

ORDER - 1

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Additionally, under 28 U.S.C. § 1915(e), district courts must review IFP complaints and

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dismiss those complaints if “at any time” the court determines that a complaint is

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frivolous, malicious, fails to state a claim on which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2); see also id. § 1915A(b)(1); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000) (clarifying that § 1915(e) applies to all IFP proceedings, not just those filed by

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prisoners). As discussed below, Ms. Bishop’s complaint falls within the category of

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pleadings that the court must dismiss.

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II.

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BACKGROUND

Ms. Bishop brings a civil rights suit against Valley Medical Center. (Compl. at 1.)

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However, her only factual assertion is that emergency room doctor, Carmin Buck,

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assaulted her and injured her arm and leg. (Id. at 7.) Ms. Bishop seeks $80,000.00 in

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damages. (Id.)

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Ms. Bishop brought suit against Valley Medical Center on June 15, 2018. (See

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Compl.) On June 19, 2018, Magistrate Judge Tsuchida, in granting Ms. Bishop IFP

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status, recommended that the court review the complaint under 28 U.S.C.

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§ 1915(e)(2)(B). (IFP Order at 1.) Ms. Bishop subsequently filed a motion requesting

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appointment of counsel. (See MTA.) The court now addresses Ms. Bishop’s motion to

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appoint counsel and reviews her complaint under 28 U.S.C. § 1915(e)(2)(B).

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ORDER - 2

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III.
A.

ANALYSIS

Motion to Appoint Counsel

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Ms. Bishop requests that the court appoint counsel. (MTA at 1.) “In civil actions

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for damages, appointment of counsel should be allowed only in exceptional cases.” U.S.

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ex rel. Gardner v. Madden, 352 F.2d 792, 794 (9th Cir. 1965). Determining whether

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counsel should be appointed involves the exercise of the court’s discretion. See id.

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Courts evaluate three factors in determining appointment of counsel: “(1) the plaintiff’s

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financial resources; (2) the efforts made by the plaintiff to secure counsel on his or her

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own; and (3) the merit of the plaintiff’s claim.” Johnson v. U.S. Dep’t of Treasury, 939

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F.2d 820, 824 (9th Cir. 1991).
The court concludes that Ms. Bishop’s submissions do not support appointing

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counsel. Ms. Bishop makes only a limited showing of her efforts to secure counsel on

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her own. (See MTA at 2.) She merely asserts that she contacted “at least” three law

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clinics through the bar association. (Id.) She does not indicate when she contacted them

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or if she checked with other entities that provide pro bono legal services or could assist

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her in securing pro bono representation. (See id.) Moreover, Ms. Bishop makes no

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argument as to the likelihood of success on the merits of her claims (see id.), and after the

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court’s independent review, the court cannot say that her claims are likely to succeed

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because of the lack of factual allegations to support Ms. Bishop’s claims, see infra

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§ III.B. Thus, the court denies Ms. Bishop’s motion to appoint counsel.

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ORDER - 3

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B.

Section 1915 Review

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Title 28 U.S.C. § 1915(e)(2)(B) authorizes a district court to dismiss a claim filed

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IFP “at any time” if it determines: (1) the action is frivolous or malicious; (2) the action

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fails to state a claim; or (3) the action seeks relief from a defendant who is immune from

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such relief. See 28 U.S.C. § 1915(e)(2)(B). An IFP complaint must contain factual

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allegations “enough to raise a right to relief above the speculative level.” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007). The court need not accept as true a legal

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conclusion presented as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Although the pleading standard articulated by Federal Rule of Civil Procedure 8 does not

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require “detailed factual allegations,” it demands more than “an unadorned,

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the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555);

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see Fed. R. Civ. P. 8(a).

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The court concludes that Ms. Bishop fails to state a claim. Aside from her

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assertion that a doctor assaulted her in the emergency room, she includes no other factual

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allegations detailing how that assault supports her civil rights claim. Indeed, Ms. Bishop

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does not specify which of her civil rights Valley Medical Center allegedly violated. (See

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Compl.) Without more, the complaint does not contain enough factual allegations to

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“raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555. In

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other words, Ms. Bishop’s complaint contains nothing more than the “unadorned

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the-defendant-unlawfully-harmed-me accusation” that Valley Medical Center violated

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her civil rights. (See Compl.); Iqbal, 556 U.S. at 678. Such accusations are insufficient.

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Iqbal, 556 U.S. at 678.

ORDER - 4

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When a court dismisses a pro se plaintiff’s complaint, the court must give the

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plaintiff leave to amend unless it is absolutely clear that amendment could not cure the

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defects in the complaint. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

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Thus, the court grants Ms. Bishop 21 days to file an amended complaint that corrects the

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deficiencies identified herein. If Ms. Bishop fails to timely comply with this order or

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fails to file an amended complaint that remedies the aforementioned deficiencies, the

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court will dismiss her complaint without leave to amend.

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IV.

CONCLUSION

For the foregoing reasons, the court DISMISSES Ms. Bishop’s complaint pursuant

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to 28 U.S.C. § 1915(e)(2)(B) with leave to amend within 21 days of the filing of this

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order. The court further DENIES Ms. Bishop’s motion to appoint counsel (Dkt. # 5).

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Dated this 2nd day of July, 2018.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 5