United States District Court, W.D. Washington
ORDER DENYING MOTION TO APPOINT COUNSEL AND ORDER TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
instant matter comes before the Court sua sponte and
on Plaintiff's Motion to Appoint Counsel, Dkt. #12.
Pro se Plaintiff Rita Cagliostro has been granted
leave to proceed in forma pauperis in this matter.
Dkt. #2. Summons has not yet been issued and no defendant has
Court will first address Ms. Cagliostro's Motion to
Appoint Counsel. In civil cases, the appointment of counsel
to a pro se litigant “is a privilege and not a
right.” United States ex. Rel. Gardner v.
Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citation
omitted). “Appointment of counsel should be allowed
only in exceptional cases.” Id. (citing
Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963)). A
court must consider together “both 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.” Weygandt
v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In
“exceptional circumstances, ” a district court
may appoint counsel for indigent civil litigants. 28 U.S.C.
§ 1915(e)(1); Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997), overruled on other grounds,
154 F.3d 952 (9th Cir. 1998).
Cagliostro has failed to set forth exceptional circumstances
warranting the appointment of counsel in this case.
Furthermore, as stated below, the Court has considered the
likelihood of success on the merits in this case and
determined that counsel is not warranted prior to Ms.
Cagliostro explaining why this case should not be dismissed.
Accordingly, this Motion will be denied.
Court will next address the adequacy of Ms. Cagliostro's
Amended Complaint. Ms. Cagliostro's original Complaint
was posted on the docket on March 27, 2018. Dkt. #3. On March
27, 2018, the Court issued an Order directing Ms. Cagliostro
to file an amended complaint. Dkt. #4.
April 23, 2018, Ms. Cagliostro filed the Amended Complaint at
issue. Dkt. #11. Ms. Cagliostro cites to claims for violation
of the Fifth Amendment's due process clause, for
discrimination in violation of the Fourteenth Amendment,
under certain other regulations and statutes, and for
violation of the American Bar Association's rules of
professional conduct. See Dkt. #11 at 3-4. However,
these claims are only mentioned in name, and under a section
titled “Cause of Action, ” Ms. Cagliostro only
pleads one cause of action, negligence. See Dkt. #11
at 6-14. The events giving rise to this cause of action
appear to have occurred solely in the fall of 2013. See,
e.g., Id. at 6 (“On (date) October, 24,
2013 at (place) Multnomah County Court, the
defendant(s): (1) performed acts that a person of ordinary
prudence in the same or similar circumstances would not have
done; or (2) failed to perform acts that a person of ordinary
prudence would have done under the same or similar
circumstances…”) (parentheticals in original).
Events occurring more recently in the Amended Complaint
appear to relate solely to Ms. Cagliostro's claims of
ongoing damages, not new actions of the Defendant. Ms.
Cagliostro's request for relief indicates that she is
seeking hundreds of thousands if not millions of dollars in
damages related to her legal studies bachelor of science
degree being placed on discharge status, as well as $500, 000
in punitive damages, $1, 000, 000 in compensatory damages,
and “$3, 800, 000 for pain and suffering of defamation,
triggers of estrangement with my child and mother and loss of
years building a real life with both of them.” Dkt. #11
at 15 (emphasis omitted). In her relief section, Ms.
Cagliostro again reiterates that this relief is based on a
claim of negligence. See id.
Court will dismiss a Complaint at any time if the action
fails to state a claim, raises frivolous or malicious claims,
or seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B).
appears to the Court that Ms. Cagliostro's claim is
untimely. A claim of negligence under Oregon law must be
brought within two years. Or. Rev. Stat. § 12.110(1).
Even if Washington law somehow applied, a negligence claim
must be brought within three years. RCW § 4.16.080. Ms.
Cagliostro has filed this case more than three years after
the events at issue in this case. The Court also notes that
Ms. Cagliostro's requested damages do not appear to be
proximately caused by the actions of Defendant.
all of the above, Plaintiff's Amended Complaint fails to
state a claim and appears frivolous. Plaintiff's
Complaint suffers from deficiencies that, if not adequately
explained in response to this Order, will require dismissal.
See 28 U.S.C. § 1915(e)(2)(B).
Response to this Order, Plaintiff must write a short and
plain statement explaining to the Court (1) why her
negligence claim is timely, and (2) why this case should not
be dismissed as frivolous. This Response may not
exceed four double-spaced (4) pages. Plaintiff is
not permitted to file attachments. The Court will take no
further action in this case until Plaintiff has submitted
Accordingly, the Court hereby finds and ORDERS:
1) Plaintiff's Motion to Appoint Counsel (Dkt. #12) is
2) Plaintiff shall file a Response to this Order to Show
Cause containing the detail above no later than
twenty-one (21) days from the date of this Order.
Failure to file this ...