United States District Court, W.D. Washington, Seattle
ORDER DENYING SECOND MOTION TO APPOINT
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court is Plaintiff Richard DiMaio's second motion to
appoint counsel. (2d MTA (Dkt. # 36).) The court has
considered the motion, the relevant portions of the record,
and the applicable law. Being fully advised,  the court denies
the motion for the reasons set forth below.
BACKGROUND & ANALYSIS
DiMaio, who is proceeding pro se and in forma
pauperis, filed this lawsuit against Snohomish County
and Sheriff Ty Trenary (collectively,
“Defendants”) 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. (Am. Compl. (Dkt. #
22) ¶ 13.) The court denied Mr. DiMaio's first
motion to appoint counsel after finding that Mr. DiMaio had
not made the required showings. (See 5/9/17 Order
(Dkt. # 14) at 3, 6.) On August 2, 2017, the court granted
Defendants' motion to dismiss Mr. DiMaio's original
complaint for failure to state a claim and granted him leave
to amend. (8/2/17 Order (Dkt. # 20).) Mr. DiMaio timely
amended his complaint, alleging violations of his First,
Fifth, and Fourteenth Amendment rights pursuant to 42 U.S.C.
§ 1983 and a breach of contract claim. (Am. Compl.
¶¶ 18-24.) He seeks damages, injunctive relief, and
attorney's fees. (See Id. ¶ 25.)
DiMaio once again requests that the court appoint counsel to
assist him with his case. (2d MTA at 2.) The Western District of
Washington has implemented a plan for court-appointed
representation of civil rights litigants. See
General Order, August 1, 2010, Section 3(c) (In re Amended
Plan for the Representation of Pro Se Litigants in Civil
Rights Actions). 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. Id. 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 28 U.S.C. §
1915(e)(1). See Id. The party 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).
Mr. DiMaio's first motion, his submissions do not support
referring the 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 2d 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 Am. Compl.);
Wilborn, 789 F.2d at 1331; General Order, August 1,
2010, Section 3(c). Instead, Mr. DiMaio argues that his case
amounts to “a modern day case of David and Goliath, in
where the strong push around the small and weak.” (2d
MTA at 2.) 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 focus on the uneven
resources between Defendants and him (2d MTA at 1-2), the
court finds that any difficulty Mr. DiMaio will experience
litigating his case does not stem “from the complexity
of the issues involved, ” Wilborn, 789 F.2d at
1331. The fact 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, particularly after the court's extensive
order detailing the deficiencies in his first complaint.
(See Am. Compl. ¶¶ 18-24; see
also 8/2/17 Order at 13-21 (discussing the shortcomings
in Mr. DiMaio's first complaint and granting leave to
amend).) 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.
 Mr. DiMaio did not request oral
argument on the motion, and the court finds that it would not
be helpful to the court's disposition of the motion.
See Local Rules W.D. Wash. LCR 7(b)(4).
 Mr. DiMaio makes his request in a
second response to Defendants' second motion to dismiss.
(See Dkt.) Because the court must liberally construe
the filings of pro se litigants, Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990), the court treats the response as a motion to appoint
counsel (see Dkt.). The court notes, however, that
in addition to failing to demonstrate a basis for appointing
counsel, see infra, Mr. DiMaio's recent filings
suggest that he may have received legal counsel in drafting
his latest complaint (see generally Am. Compl.
(listing “Michael A. Jacobson, P.S., Inc.” in the
footer of the amended complaint); MTA at 1 (“The
complaint in its entirety (Completed by Attorney at law Mike
Jacobson).”)). This fact also cuts against granting the
 The court expresses no opinion
regarding the merits of Defendants' second motion to
dismiss. See Johnson v. U.S. Dep't of Treasury,
939 F.2d 820, 824 (9th Cir. 1991) (stating that district
courts may not dismiss a pro se plaintiff's
complaint prior to ruling on his motion for appointment of
counsel); (2d MTD (Dkt. # 32).)
 Mr. DiMaio may access materials to
assist pro se litigants on the Western District of
Washington's website. See Representing Yourself
(“Pro Se”), W. Dist. of Wash.,
E-Pro Se, W. Dist. ...