Stoney v. Mason County

Filing 3

ORDER denying 1 Motion for Leave to Proceed in forma pauperis and for Court-appointed counsel; plaintiff has 15 days to pay the filing fee or this matter may be dismissed; signed by Judge Ronald B. Leighton.(DN) Modified on 7/28/2014 (DN). (cc to pltf)

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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 DONALD STONEY, CASE NO. C14-5535 RBL 9 Plaintiff, 10 v. ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IFP AND FOR APPOINTMENT OF COUNSEL 11 MASON COUNTY, 12 Defendant. 13 14 THIS MATTER is before the Court on Plaintiff Donald Stoney’s application to proceed 15 in forma pauperis. [Dkt #1] For the reasons below, the application is DENIED. 16 A district court may permit indigent litigants to proceed in forma pauperis upon 17 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad 18 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil 19 actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th 20 Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed 21 in forma pauperis at the outset if it appears from the face of the proposed complaint that the 22 action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 23 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis 24 ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IFP AND FOR APPOINTMENT OF COUNSEL - 1 1 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v. 2 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 3 1984). 4 Stoney’s complaint appears to lack merit. He alleges that Mason County was negligent, 5 corrupt, and denied him his rights during a court proceeding in which he was convicted of a DUI. 6 He makes a conclusory assumption that the prosecution’s witnesses committed perjury, leading 7 to a wrongful conviction. He also objects to being sent to jail after the conviction, which cost 8 him his job. His unsubstantiated claims present no cognizable legal theory. He also has no reason 9 to object to punishment after being convicted of a crime. The Motion to Proceed in forma 10 pauperis is DENIED. 11 No constitutional right to counsel exists for an indigent plaintiff in a civil case unless the 12 plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social 13 Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has the 14 discretion to appoint counsel for indigent litigants who are proceeding in forma pauperis. United 15 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). The Court will 16 appoint counsel only under “exceptional circumstances.” Id.; Wilborn v. Escalderon, 789 F.2d 17 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances requires an evaluation of 18 both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims 19 pro se in light of the complexity of the legal issues involved.” Wilborn, 789 F.2d at 1331 20 (internal quotations omitted). These factors must be viewed together before reaching a decision 21 on whether to appoint counsel under § 1915(e)(1). Id. 22 Stoney has not fully completed the application for Court-appointed counsel. His only 23 stated justification for requiring Court-appointed counsel is that he has spoken with a few 24 ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IFP AND FOR APPOINTMENT OF COUNSEL - 2 1 attorneys who do not “want to deal with Mason County.” Assuming he does complete it at some 2 point, the Court has denied leave to proceed in forma pauperis, so it must similarly conclude that 3 the proposed complaint lacks sufficient merit to justify appointment of counsel. 4 For the reasons stated above, the applications to proceed in forma pauperis and for Court- 5 appointed counsel are DENIED. Plaintiff has 15 days to pay the filing fees or the case may be 6 dismissed. 7 Dated this 26th day of July, 2014. 8 9 A 10 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IFP AND FOR APPOINTMENT OF COUNSEL - 3

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