Rodgers v. Thurston Community Television et al

Filing 9

ORDER denying 8 Plaintiff's Motion to Appoint Counsel; signed by Judge Ronald B. Leighton.(DN) Modified on 5/13/2015 (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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ALAN RODGERS,

CASE NO. C14-5735 RBL

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
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THURSTON COMMUNITY
TELEVISION, et al.,
Defendants.

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THIS MATTER is before the Court on Plaintiff Rodgers’ Motion for Court-Appointed
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Counsel [Dkt. #8]. Plaintiff is pro se, and he has been granted in forma pauperis status. He has
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sued Thurston County Community Television and its employees for sexual harassment, and for
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back wages based on his claim that at some point he became an employee (and not a volunteer,
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though he concedes he was initially a volunteer).
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Rodgers claims that Defendant Peter Epperson (a station employee) pressured him to be a
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volunteer, but also promised him pay, and “made him perform tasks beyond his abilities.”
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Rodgers also claims that Epperson made “uncomfortable sexual advances” and “encouraged”
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him to “date and otherwise sexually engage female coworkers.”
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 1

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Rodgers also sues the EEOC and the Washington Human Rights Commission, apparently

2 for failing to find that he was harassed or that he was in fact an employee. He has also sued a
3 variety of other defendants for their perceived roles in the acts of which he complains—for
4 example, he named the Olympia School District because some of the conduct took place on their
5 school grounds.
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Plaintiff Rodgers admits that he was a volunteer:

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Plaintiff also claims that he suffers from multiple and severe disabilities:

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Rodgers references TITLE VII, the ADA GINA and the ADEA but does not tie any of
his factual complaints to the substance of any of those causes of action. He seeks a “cash award”

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 2

1 for back wages, pain, and mental and emotional distress. Rodgers claims he is not an attorney,
2 and asks the Court to provide one for him.
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An indigent plaintiff in a civil case has no constitutional right to counsel unless he may

4 lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social Servs., 452 U.S.
5 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has discretion to appoint
6 counsel for indigent litigants who are proceeding in forma pauperis. United States v.
7 $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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The Court will appoint counsel only under “exceptional circumstances.” Id.; Wilborn v.

9 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances
10 requires an evaluation of both the likelihood of success on the merits and the ability of the
11 plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.”
12 Wilborn, 789 F.2d at 1331 (internal quotations omitted). These factors must be viewed together
13 before reaching a decision on whether to appoint counsel under § 1915(e)(1). Id.
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There is, of course, some tension between these factors. Rodgers can articulate the facts

15 he alleges in support of his wage, sexual harassment, and disability claims, but he has not shown
16 that he can articulate a cognizable legal claim based on those facts. Rodgers cannot demonstrate
17 any likelihood of success on the merits of the claims he has asserted—he was barely able to
18 avoid a determination that the claims were frivolous in applying for in forma pauperis status.
19 His wage claim depends on a determination that he was an employee, which he admits he was
20 not. Rodgers even implicitly suggests that he was not employable due to his multiple, severe
21 disabilities. Rodgers’ sexual harassment claim is facially insufficient—Epperson’s “encouraging
22 him to date” is not actionable. And his claims against the EEOC for failing to agree that he was
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 3

1 an employee entitled to back pay, or that he was harassed, are similarly without merit. The legal
2 or factual basis for Rodgers’ claims against the remaining defendants is not articulated, at all.
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Rodgers’ Motion for Court-appointed counsel [Dkt. #8] is DENIED.

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IT IS SO ORDERED.

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Dated this 13th day of May, 2015.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 4