United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge
the court are Plaintiff Richard DiMaio's motion to extend
the time to respond to Defendants County of Snohomish
(“the County”) and Sheriff Ty Trenary's
motion to dismiss (MTE (Dkt. # 12)) and motion to appoint
counsel (MTA (Dkt. # 13)). The court has considered Mr.
DiMaio's motions, the relevant portions of the record,
and the applicable law. Being fully advised,  the court grants
Mr. DiMaio's motion to extend and denies Mr. DiMaio's
motion to appoint counsel for the reasons set forth below.
DiMaio, who is proceeding pro se and in forma
pauperis, filed this lawsuit on January 30, 2017. (IFP
Mot. (Dkt. # 1); IFP Order (Dkt. # 2).) The suit arises from
Mr. DiMaio's termination from the Snohomish County
Sheriff's Office on February 3, 2015. (Compl. (Dkt. # 3)
¶ 13.) Mr. DiMaio asserts claims under 42 U.S.C. §
1983 for (1) deprivation of “presumptively continuing
government employment without furnishing to [Mr.] DiMaio a
meaningful post-termination opportunity to bring to a neutral
fact finder testimonial evidence of his innocence and the
falsity of accusations against him” (id. at
3), (2) violation of his “First Amendment right to
access legal counsel and the legal process to redress matters
of public concern involving unconstitutional action”
(id. ¶ 23), and (3) violation of his Fourteenth
Amendment right to equal protection of the law (id.
¶ 24). Mr. DiMaio also appears to assert a claim against
the County under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978), for the
alleged constitutional violations. (Id. ¶ 22.)
As a result of Defendants' actions, Mr. DiMaio alleges
that he has “experienced financial loss, job and career
loss, [and] emotional pain, fear, and anxiety.”
(Id. ¶ 25.)
April 6, 2017, Defendants filed a motion to dismiss Mr.
DiMaio's complaint pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(6) or for a more definite
statement pursuant to Federal Rule of Civil Procedure 12(e).
(See MTD (Dkt. # 8).) Defendants properly noted
their motion to dismiss for May 5, 2017. (See id.);
Local Rules W.D. Wash. LCR 7(d)(3) (stating that motions to
dismiss “shall be noted for consideration on a date no
earlier than the fourth Friday after filing and service of
the motion”). On May 1, 2017, the day that Mr.
DiMaio's response to the motion to dismiss was due,
see Local Rules W.D. Wash. LCR 7(d)(3), Mr. DiMaio
instead filed a motion to extend the time for him to respond
and a motion to appoint counsel (see MTE; MTA). The
court now considers those motions.
Motion to Extend Time
DiMaio requests that the court extend his time to respond to
Defendants' motion to dismiss because he requests
court-appointed counsel “[d]ue to the complexity of the
case” and will need “more time . . . to con[sult]
counsel ([i]f granted) to receive legal guidance to the
motion(s) filed by the defense.” (MTE at 1.) Although
the court denies Mr. DiMaio's motion to appoint counsel,
see infra § III.B, the court nevertheless
grants Mr. DiMaio's request for an extension of time to
respond to Defendants' motion. In light of Mr.
DiMaio's pro se status and the lack of apparent
prejudice to Defendants from a minor extension, the court
will allow Mr. DiMaio until May 22, 2017, to respond to the
motion to dismiss. The court cautions Mr. DiMaio that even
though he is proceeding pro se, he is responsible
for complying with all applicable rules. See King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se
litigants must follow the same rules of procedure that govern
other litigants.”), overruled on other grounds by
Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir.
2012); Local Rules W.D. Wash. LCR 7(j) (“A motion for
relief from a deadline should, whenever possible, be filed
sufficiently in advance of the deadline to allow the court to
rule on the motion prior to the deadline. Parties should not
assume that the motion will be granted and must comply with
the existing deadline unless the court orders
otherwise.”). The court further cautions Mr. DiMaio
that it will not grant an additional extension of time to
respond to the motion absent extraordinary circumstances.
Motion to Appoint Counsel
DiMaio also requests that the court appoint counsel to assist
him with his case. (MTA at 1.) This District has implemented
a plan for court-appointed representation of civil rights
litigants. The plan requires the court to assess a
plaintiff's case before forwarding it to the Pro Bono
Screening Committee for further review and possible
appointment of pro bono counsel. See General Order,
August 1, 2010, Section 3(c) (In re Amended Plan for the
Representation of Pro Se Litigants in Civil Rights Actions).
In its initial assessment, the court evaluates the case to
determine that it is not frivolous and that the plaintiff is
financially eligible. Id. Although the court has
“discretion to designate counsel to represent an
indigent civil litigant, ” Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); see
also 28 U.S.C. § 1915(e)(1), the court may only do
so in “exceptional circumstances, ”
Wilborn, 789 F.2d at 1331; see also Agyeman v.
Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).
The court may find exceptional circumstances after evaluating
“the likelihood of success on the merits” and
“the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal
issues involved.” Wilborn, 789 F.2d at 1331.
The court must analyze both of these factors together before
deciding whether to appoint counsel under Section 1915(e)(1).
See Id. The plaintiff seeking counsel bears the
burden of demonstrating exceptional circumstances.
Brogdon v. City of Phoenix Police Dep't, No.
CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D. Ariz.
June 19, 2013).
court concludes that Mr. DiMaio's submissions do not
support referring Mr. DiMaio's case to the Pro Bono
Screening Committee for further review or a finding of
exceptional circumstances that warrant appointing counsel.
Mr. DiMaio makes no argument as to the likelihood of success
on the merits of his claims (see MTA), and after
conducting an independent review, the court cannot say that
Mr. DiMaio is likely to succeed on the merits of his claim
(see Compl.); Wilborn, 789 F.2d at 1331;
General Order, August 1, 2010, Section 3(c). Because Mr.
DiMaio “provides no evidence of his likelihood of
success at trial[, he] fails to satisfy the first factor of
the test.” Torbert v. Gore, No. 14-cv-2991 BEN
(NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016).
addition, despite Mr. DiMaio's characterization of this
case as “complex” (MTE at 1), the court finds
that any difficulty Mr. DiMaio will experience in litigating
his case does not stem “from the complexity of the
issues involved, ” Wilborn, 789 F.2d at 1331.
That Mr. DiMaio might find “it difficult to articulate
his claims pro se” is insufficient to
demonstrate that his case involves complex legal issues.
Wilborn, 789 F.2d at 1331; see also Garcia v.
C.D.C.R., No. 12cv1084 IEG (KSC), 2013 WL 485756, at *1
(S.D. Cal. Feb. 6, 2013) (noting that exceptional
circumstances are not shown even though there is “no
doubt [that] most pro se litigants find it difficult
to articulate their claims and would be better served with
the assistance of counsel”). Indeed, the constitutional
claims that Mr. DiMaio alleges are relatively
straightforward. (See Compl. ¶¶ 22-25;
see also Id. at 3.) Accordingly, Mr. DiMaio fails to
meet his burden of establishing exceptional circumstances
that warrant the appointment of counsel. See
Wilborn, 789 F.2d at 1331; Brogdon, 2013 WL
3155116, at *1.