Chan v. Ryan et al
Filing
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ORDER denying Plaintiff's #9 Motion to Appoint Counsel, and #10 Motion for Reconsideration. Signed by Judge Lauren King. (SS) (cc: Plaintiff via USPS)
Case 2:22-cv-01796-LK Document 11 Filed 01/17/23 Page 1 of 8
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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JOSEPH CHAN,
v.
CASE NO. 22-CV-01796-LK
Plaintiff,
MICHAEL RYAN, et al.,
ORDER DENYING MOTION TO
APPOINT COUNSEL AND
MOTION FOR
RECONSIDERATION
Defendants.
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This matter comes before the Court on pro se Plaintiff Joseph Chan’s motion to appoint
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counsel. Dkt. No. 9. Mr. Chan also renews his request for service by U.S. Marshal, which the Court
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construes as a motion for reconsideration of its January 3, 2023 Order. Dkt. No. 10 at 2; see Dkt.
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No. 8 (order). Both motions are denied.
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I.
BACKGROUND
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Mr. Chan is suing St. James Cathedral, Pastor Michael Ryan, Pastoral Assistant Larry
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Brouse, the Seattle Police Department, and Seattle Police Officers Burns and Bradrick for
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violations of his human rights and First Amendment right to freedom of religion. See Dkt. No. 1
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at 1–4, 6. Although his complaint is difficult to follow, this suit appears to stem from a fracas that
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unfolded during Christmas Mass at the cathedral in 2019. Dkt. No. 1 at 4, 7; Dkt. No. 6 at 1–2;
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Dkt. No. 7 at 1–2. Mr. Chan alleges that the defendants “violently assaulted [him], tried to racially
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bully/intimidate [him], all under the ‘premise’ that they were looking for someone that looks like
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[him.]” Dkt. No. 1 at 4. He claims that Brouse “rapaciously stalked” him and colluded with
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Officers Burns and Bradrick, who “violently grabbed/dragged shoved [him] against [the] wall of
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[his] own church during [his] Christmas Mass[.]” Id. at 7; see also Dkt. No. 7 at 1 (describing
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incident). Pastor Ryan allegedly authorized these actions and, as the scrum unfolded, repeatedly
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told Mr. Chan that he looked like someone they were after. Dkt. No. 1 at 7. Mr. Chan further
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alleges that he now has severe PTSD, psychological distress, and “horrific nightmares,” and that
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“Christmas, Christmas Mass, Mass, [and] church will never be the same[.]” Id. at 8 (“Every time
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I even think of Christmas, or church in general, or pass by [St. James Cathedral], I relive it all over
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again!”). He wants the defendants fired, “formal apologies,” and “compensatory/punitive damages
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in the amount of $100,000,000[.]” Id.
II.
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DISCUSSION
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The Court begins by addressing Mr. Chan’s motion to appoint counsel. It then takes up his
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motion for reconsideration. Finally, the Court reminds Mr. Chan of his obligations as a pro se
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litigant.
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A.
Motion to Appoint Counsel
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Mr. Chan has contacted “more than 30 attorneys, law firms, [and] people in law schools”
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to no avail. Dkt. No. 9 at 2. He claims that he needs counsel because he is overwhelmed and does
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not “know how to do any of this all by himself[.]” Id. Mr. Chan also avers that he “do[es] not have
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any money” because he spent it all on the filing fee. Dkt. No. 10 at 1. Although the Court
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sympathizes with his predicament, Mr. Chan has not shown that he is entitled to court-appointed
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counsel.
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1.
Section 1915(e)(1) Does Not Apply to Mr. Chan
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“Unlike in criminal cases that implicate the Sixth Amendment right to counsel, civil
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litigants who cannot afford counsel are not constitutionally guaranteed the appointment of a
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lawyer.” Adir Int’l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1039 (9th Cir. 2021). This is
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true even for Section 1983 actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). And
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while 28 U.S.C. § 1915(e)(1) vests the Court with discretion to “request” appointment of counsel
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for litigants proceeding in forma pauperis in “exceptional circumstances,” Agyeman v. Corr. Corp.
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of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), that statute is inapplicable here because Mr. Chan
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paid the filing fee. See Neitzke v. Williams, 490 U.S. 319, 324 (1989) (“The federal in forma
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pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure
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that indigent litigants have meaningful access to the federal courts.” (emphasis added)); Hanks v.
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City of Shoreline, No. 21-CV-00600, 2022 WL 168518, at *1 (W.D. Wash. Jan. 18, 2022) (Section
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1915(e)(1) does not apply to pro se plaintiffs who pay the filing fee).
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2.
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Even so, Mr. Chan fails to establish the “exceptional circumstances” that would warrant
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appointment of counsel under Section 1915(e)(1). The exceptional-circumstances inquiry requires
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the Court to consider “the likelihood of success on the merits as well as the ability of the petitioner
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to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v.
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Look, 718 F.2d 952, 954 (9th Cir. 1986). Neither consideration is dispositive, and the Court must
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view them together. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Mr. Chan Has Not Shown “Exceptional Circumstances”
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Neither consideration weighs in Mr. Chan’s favor. First, the Court cannot weigh the merits
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of his claims on the undeveloped, limited record before it. See, e.g., Sam v. Renton Sch. Dist., No.
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C21-1363-RSM, 2021 WL 4952187, at *1 (W.D. Wash. Oct. 25, 2021) (“The Court cannot
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conclude on this thin record whether these claims have a strong likelihood of success on the
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merits.”). And Mr. Chan has not otherwise provided any compelling arguments or evidence that
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this case is likely to succeed on the merits. See Ralls v. Facebook, No. C16-0007-JLR, 2016 WL
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10591399, at *2 (W.D. Wash. Apr. 25, 2016). Second, this case does not appear to present the type
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of legally or factually complex issues that would preclude Mr. Chan from adequately articulating
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his claims pro se. “[A] litigant must meet a high bar to show that the legal issues involved are
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sufficiently complex, and that he is therefore impeded in his ability to present his case.” Siglar v.
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Hopkins, 822 F. App’x 610, 612 (9th Cir. 2020). Mr. Chan alleges a First Amendment freedom of
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religion claim and appears to hint at a common law assault and battery claim—perhaps even a
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Fourth Amendment excessive force claim. Nothing about those legal theories or the facts alleged
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is “exceptionally complex.” Munywe v. Dier, No. 3:21-CV-05431-BJR-JRC, 2022 WL 4466156,
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at *1 (W.D. Wash. Sept. 26, 2022); see, e.g., Agyeman, 390 F.3d at 1103–04 (pro se prisoner’s
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meritorious case had “triple complexity” that required skillful framing and advanced legal
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knowledge of Bivens actions, the Federal Tort Claims Act, and the Federal Bureau of Prisons’
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regulations).
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Mr. Chan’s arguments to the contrary are unavailing. His financial circumstances following
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payment of the filing fee do not justify the appointment of counsel. See Arenas v. Inslee, No. 19-
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CV-5339-RJB, 2019 WL 3387333, at *3 (W.D. Wash. July 26, 2019). Nor does his unsuccessful
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struggle to retain private counsel. See id. (“Plaintiff's difficulty obtaining counsel does not amount
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to a showing of exceptional circumstances warranting court-appointed counsel.”). And finally, that
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he might more articulately set forth the facts underlying his claim with the assistance of counsel is
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not the test. Steiner v. Hammond, No. C13-5120-RBL, 2013 WL 3777068, at *2 (W.D. Wash. July
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16, 2013). The issues Mr. Chan cites are, at base, common to pro se litigants. Munywe, 2022 WL
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4466156, at *1. The Court therefore cannot find the exceptional circumstances necessary to justify
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appointment of counsel.
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The Court also notes that even if Section 1915(e)(1) were applicable to this case, “the
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statute does not actually authorize the court to force a lawyer to take a case.” Sifuentes v. Nautilus,
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Inc., No. C21-5613-JLR, 2022 WL 1014963, at *1 (W.D. Wash. Apr. 5, 2022) (“Nor does the
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court have staff attorneys standing by to represent pro se litigants.”). Under the statute, “the court
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may only ‘request’ that an attorney represent an indigent litigant.” Id. (quoting 28 U.S.C. §
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1915(e)(1)); see also Mallard v. U.S. Dist. Court, 490 U.S. 296, 307 (1989) (Section 1915(e) does
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not authorize compulsory appointments); Dragasits v. Rucker, No. 18-CV-0512-WQH-AGS, 2021
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WL 4710854, at *2 (S.D. Cal. Oct. 8, 2021) (“[T]he statutory authority to recruit civil counsel”
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does not allow the Court to “force attorneys to represent an indigent civil litigant.”).
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B.
Motion for Reconsideration of Order Denying Service of Summons
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Mr. Chan next renews his request for service of summons pursuant to Federal Rule of Civil
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Procedure 4(c)(3). Dkt. No. 10 at 2. The Court denied his original motion because he failed to
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explain why he needed assistance or why he could not serve the defendants himself. Dkt. No. 8 at
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1–2 (citing Carter v. Thrasher, No. C22-0050-BHS, 2022 WL 782424, at *1 (W.D. Wash. Mar.
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15, 2022)). Mr. Chan now contends that he requires the Court’s assistance because he “spent all
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[his] money on the court filing fee” and it is “very, very expensive to serve the summons[es.]”
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Dkt. No. 10 at 2.
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The Court construes this request as a motion for reconsideration. Such motions are
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disfavored and will ordinarily be denied absent a showing of manifest error in the prior ruling or a
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showing of new facts or legal authority that could not have been brought to the Court’s attention
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earlier with reasonable diligence. LCR 7(h); see also Marlyn Natraceuticals, Inc. v. Mucos Pharma
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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
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The Court denies the motion. As previously explained, Federal Rule of Civil Procedure
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4(c)(3) mandates service by a United States marshal only when a plaintiff is authorized to proceed
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in forma pauperis under 18 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. Where, as here,
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a plaintiff has paid the filing fee, the rule vests the Court with discretion to order service. This
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discretion is exercised only in limited circumstances, such as “when a law enforcement presence
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appears necessary or advisable to keep the peace” or “when a hostile defendant threatens injury to
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the process server.” Hollywood v. Carrows Cal. Fam. Rests., No. CV18-2098-JGB(GJS), 2018
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WL 7461690, at *1 (C.D. Cal. Apr. 26, 2018) (cleaned up); accord Hoffart v. Wash. Mut. Bank,
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Nat’l Ass’n, No. CV12-10465-E, 2013 WL 2445019, at *1 (C.D. Cal. May 13, 2013).
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A plaintiff’s Rule 4(c)(3) application should accordingly “set forth whatever steps to serve
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process already have been taken” and “must provide a factual basis for why a court order is
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necessary to accomplish service.” Hollywood, 2018 WL 7461690, at *1; see also Frerks v. Wolf,
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No. C19-978-RSM, 2020 WL 1467339, at *1 (W.D. Wash. Mar. 26, 2020) (“Mindful that Rule 4
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was amended primarily to relieve the marshals from having to effect service in private actions,
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courts often require a showing that a non-IFP plaintiff attempted some form of proper service.”).
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Mr. Chan has made no such showing. Rather than identify any attempts at service, he claims that
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he cannot afford it under any circumstances. This is insufficient to warrant court-ordered service.
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Mr. Chan also overlooks the fact that, “even if such service was to be ordered, [he] would still be
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responsible for payment of the cost of service, including any reasonable steps taken by the
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Marshals to locate the defendants for the purpose of effecting service of summons.” Thompson v.
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Williams, No. 21-CV-00602-RM-KMT, 2021 WL 4748663, at *2 (D. Colo. Oct. 12, 2021)
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(cleaned up).
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To the extent Mr. Chan cannot afford the costs of suit, he may apply to proceed in forma
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pauperis (“IFP”). The Western District of Washington’s “IFP Application with Written Consent”
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is available online (https://www.wawd.uscourts.gov/sites/wawd/files/IFPApplication.pdf) and
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from the Clerk’s office. The Court has also published a “Pro Se Guide to Filing Your Lawsuit in
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Federal Court,” which is likewise available on the Western District of Washington’s website:
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https://www.wawd.uscourts.gov/sites/wawd/files/ProSeGuidetoFilingYourLawsuitinFederalCour
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t.pdf.
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C.
Obligations of Pro Se Litigants
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As a final matter, the Court reminds Mr. Chan of his obligations proceeding pro se. “The
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Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro
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se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall,
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454 U.S. 364, 365 (1982) (per curiam)). Pro se pleadings are thus held “to less stringent standards
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than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
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curiam). Federal courts, however, are not advocates for pro se litigants. Noll v. Carlson, 809 F.2d
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1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith,
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203 F.3d 1122 (9th Cir. 2000) (en banc); accord Khalid v. Microsoft Corp., 409 F. Supp. 3d 1023,
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1031 (W.D. Wash. 2019). And pro se plaintiffs do not have greater rights than plaintiffs
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represented by counsel. Jacobson v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986). This means
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that they “are subject to the same procedural requirements as other litigants.” Muñoz v. United
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States, 28 F.4th 973, 978 (9th Cir. 2022); see, e.g., Chen v. King Cnty. Sheriff’s Off., No. 2:21-CV-
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01492-LK, 2022 WL 17960617, at *12 (W.D. Wash. Dec. 27, 2022) (pro se litigants are expected
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to abide by the Local Civil Rules); Howell v. Holland Am. Line USA Inc., No. C13-0730JLR, 2014
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WL 5325225, at *7 (W.D. Wash. Oct. 17, 2014) (pro se litigants must comply with the Federal
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Rules of Civil Procedure).
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Thus far, Mr. Chan has filed a procedurally improper “addendum” to his complaint
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(including a praecipe to that addendum) and a letter supplementing his motion to appoint
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counsel—the latter of which contained a second request for court-ordered service of summons.
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See Dkt. Nos. 6–7 (addendum to complaint and praecipe to addendum); Dkt. No. 10 (letter). As
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explained in the Court’s January 3, 2023 Order, to the extent Mr. Chan wishes to amend his
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complaint, he must adhere to the applicable procedural rules—including but not limited to Federal
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Rule of Civil Procedure 15 and Local Civil Rule 15. See Dkt. No. 8 at 2; see also, e.g., Paulson v.
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George, No. 3:19-CV-05491-BHS-JRC, 2021 WL 1386992, at *1 (W.D. Wash. Apr. 13, 2021)
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(even construing pro se litigant’s motion as a motion to amend, it was not proper under Local Civil
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Rule 15); Keodara v. Boe, No. 3:21-CV-5129-JCC-TLF, 2021 WL 9781867, at *1 (W.D. Wash.
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May 18, 2021) (explaining that an amended complaint “may not simply attach or incorporate any
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part of the original complaint by reference” because an amended complaint operates as “a complete
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substitute for the original complaint, and it is not a supplement.”).
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Nor will the Court tolerate what appears to be an emerging pattern of filings aimed at
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supplementing earlier motions or pleadings. Future violations of the Local Civil Rules or Federal
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Rules of Civil Procedure may result in sanctions up to and including dismissal. See Ghazali v.
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Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) (failure of pro se litigant to follow procedural
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rules justified dismissal of civil rights action).
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III.
CONCLUSION
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The Court accordingly DENIES Mr. Chan’s motion to appoint counsel and motion for
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reconsideration. Dkt. No. 9; Dkt. No. 10 at 2. The Clerk is directed to mail copies of this Order to
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Mr. Chan at his last known address.
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Dated this 17th day of January, 2023.
A
Lauren King
United States District Judge
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