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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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DONALD STONEY,

CASE NO. C14-5535 RBL

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Plaintiff,
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v.

ORDER DENYING PLAINTIFF’S
MOTION TO PROCEED IFP AND
FOR APPOINTMENT OF COUNSEL

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MASON COUNTY,
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Defendant.
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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.
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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
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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).
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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.
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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.
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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
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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.
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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.
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Dated this 26th day of July, 2014.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER DENYING PLAINTIFF’S MOTION TO
PROCEED IFP AND FOR APPOINTMENT OF
COUNSEL - 3