Brown v. United States Marshal Service

Opinion

1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 JEROME JULIUS BROWN, 11 CASE NO. C19-01246 RAJ Plaintiff, 12 ORDER DENYING MOTION UNITED STATES MARSHAL TO APPOINT COUNSEL 13 SERVICE, et. al., AND DISMISSING 14 COMPLAINT Defendants. 15

16 I. INTRODUCTION 17 This matter comes before the Court on Plaintiff’s Motion to Appoint Counsel 18 (Dkt. # 15). For the reasons that follow, the Court DENIES Plaintiff’s Motion, and 19 DISMISSES, without leave to amend, his Complaint. 20 II. BACKGROUND 21 On August 12, 2019, Plaintiff Jerome Brown (“Plaintiff”) filed this action against 22 Defendants Gerald Auerback, Donald Washington, Hyunok Lee, Vincent O’Neal, Edwin 23 Sloan, and the United States Marshal Service. Dkt. # 9. In doing so, Plaintiff submitted 24 an application to proceed in forma pauperis. Dkt. # 1. The Honorable Michelle L. 25 Peterson granted the application. Dkt. # 7. 26 On August 15, 2019, the Court dismissed Plaintiff’s Complaint. Dkt. # 11. The 27 1 Court did so pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the Court to dismiss 2 the complaint of an in forma pauperis plaintiff if that complaint fails to state a claim. Id. 3 In dismissing Plaintiff’s Complaint, the Court instructed that Plaintiff must file an 4 amended complaint within fourteen (14) days of the date of the Order, or the case would 5 be dismissed. Id. Over a month has passed since the Court’s August 15, 2019 Order, and 6 Plaintiff has not made any filing. 7 III. DISCUSSION 8 A. The Court Denies Plaintiff’s Motion to Appoint Counsel 9 This is a civil action where, as a general matter, a plaintiff does not have a right to 10 counsel. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In certain cases, 11 “exceptional circumstances” may warrant the appointment of counsel. Agyeman v. 12 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of exceptional 13 circumstances requires an evaluation of both ‘the likelihood of success on the merits and 14 the ability of the petitioner to articulate his claims pro se in light of the complexity of the 15 legal issues involved.’ ” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 16 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 17 The Court finds that no exceptional circumstances warrant the appointment of 18 counsel because Plaintiff is unlikely to succeed on the merits. Plaintiff alleges “Conflict 19 of interest name Donald W. Washington. Conflict of interest not Washington but Capitol 20 City, D.C.. Conflict of Interest, USDC Western District of Washington.” Dkt. # 9 at 5. 21 Plaintiff also alleges that he was “arrested by two US Marshals at clerks office 05 29, 22 2011” but provides no additional details regarding the arrest. Dkt. # 9. Plaintiff appears 23 to allege negligence, but the Complaint contains no allegations explaining what the 24 negligent acts were or how the allegations are relevant to Plaintiff’s claims against the 25 Defendants. Id. The Court granted Plaintiff an opportunity to supplement his factual 26 allegations, and Plaintiff has failed to do so. Dkt. # 11. Because no exceptional 27 circumstances warrant the appointment of counsel, Plaintiff’s motion for counsel is 1 DENIED. Dkt. # 15. 2 B. The Court Dismisses Plaintiff’s Complaint With Prejudice 3 The Court’s authority to grant in forma pauperis status derives from 28 U.S.C. 4 § 1915. The Court is required to dismiss an in forma pauperis plaintiff’s case if the Court 5 determines that “the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on 6 which relief may be granted; or (iii) seeks monetary relief against a defendant who is 7 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it 8 lacks a basis in law or fact. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A 9 complaint fails to state a claim if it does not “state a claim to relief that is plausible on its 10 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). 11 As noted, the Court previously dismissed Plaintiff’s complaint with leave to 12 amend within fourteen days because the complaint failed to state a claim upon which 13 relief could be granted. Dkt. # 11. In doing so, the Court stated, “[i]f Plaintiff does not 14 file an amended complaint within that timeframe . . . the Court will dismiss the action.” 15 Id. Plaintiff has not complied and has not filed an amended pleading as of the date of this 16 Order, which is over a month after its previous Order directing Plaintiff to do so. Dkt. # 17 11. Plaintiff’s Complaint still fails to set forth any actionable legal claim. Accordingly, 18 the Court DISMISSES Plaintiff’s complaint without leave to amend. Lucas v. Dep’t of 19 Corr., 66 F.3d 245, 248 (9th Cir. 1995) (dismissal without leave to amend is proper 20 where “it is absolutely clear that no amendment can cure the defect”). 21 Dated this 25th day of September, 2019. 22 23 A 24 25 The Honorable Richard A. Jones 26 United States District Judge 27