Hanks v. City of Shoreline

• Court: District Court, W.D. Washington
• Decided: January 18, 2022
• Docket: 2:21-cv-00600
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 GAYLE D. HANKS, CASE NO. 21-CV-00600 11 Plaintiff, ORDER DENYING MOTIONS FOR 12 v. APPOINTMENT OF COUNSEL 13 CITY OF SHORELINE et al, 14 Defendants. 15

16 This matter comes before the Court on Plaintiff Gayle Hanks’ motions for appointment of 17 counsel. Dkt. Nos. 1-5, 6, 12. Also before the Court are several supporting exhibits, documents, 18 and “letters.” Dkt. Nos. 9, 14–20. Having reviewed the record, the Court DENIES the motions. 19 BACKGROUND 20 Ms. Hanks initiated this litigation pro se by moving for leave to proceed in forma 21 pauperis (“IFP”). Dkt. No. 1. She is suing the City of Shoreline, the Shoreline Police, and two 22 private individuals for allegedly poisoning her and her yard with toxic chemicals. Dkt. No. 1-1 at 23 1, 3–5; Dkt. No. 5 at 1, 3–5. The Magistrate Judge recommended denying Ms. Hanks’ IFP 24 application after determining that she had the financial means to pay the filing fee, and Ms. 1 Hanks thereafter paid the full filing fee. Dkt. No. 4 at 1. The Court then docketed her complaint 2 and issued a Minute Order finding the Magistrate Judge’s Report and Recommendation moot in 3 light of payment. Dkt. 10 at 1. Ms. Hanks now has three pending motions for appointment of 4 counsel. Dkt. Nos. 1-5, 6, 12. 5 DISCUSSION

6 Ms. Hanks urges appointment of counsel on several grounds. She alleges that she has 7 unsuccessfully approached hundreds of attorneys over the last four years, and attributes this 8 failure to retain private counsel to insufficient personal funds and conflicts of interest. Dkt. No. 9 1-5 at 2; Dkt. No. 6 at 2; Dkt. No. 12. 10 “[C]ivil litigants who cannot afford counsel are not constitutionally guaranteed the 11 appointment of a lawyer.” Adir Int’l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1039 (9th 12 Cir. 2021). This is true even if the Court construes Ms. Hanks’ claims as a § 1983 action. 13 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). And while 28 U.S.C. § 1915(e)(1) 14 allows the Court to appoint counsel for litigants proceeding IFP in “exceptional circumstances,”

15 Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), that statute is inapplicable here because 16 Ms. Hanks is not proceeding IFP. The Magistrate Judge recommended that the Court deny Ms. 17 Hanks’ IFP application after determining that she possessed the means to pay the filing fee, a fee 18 which Ms. Hanks did in fact pay. See Neitzke v. Williams, 490 U.S. 319, 324 (1989) (“The 19 federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is 20 designed to ensure that indigent litigants have meaningful access to the federal courts.”) 21 (emphasis added); Jackson v. Boeing Co., No. C21-654-MJP, 2021 WL 4168988, at *1 (W.D. 22 Wash. Sept. 14, 2021) (“[A]s demonstrated by Plaintiff’s ability to pay the filing fee, it appears 23 Plaintiff has some funds available to retain an attorney.”). 24 In any event, Ms. Hanks has failed to establish the “exceptional circumstances” that 1 would warrant appointment of counsel. She has not shown a likelihood of success on the merits 2 or that her claims present complex legal issues beyond a pro se litigant. See Wood v. 3 Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 4 (9th Cir. 1986). 5 First, and even construing her pro se pleadings liberally, Chavez v. Robinson, 817 F.3d

6 1162, 1167 (9th Cir. 2016), Ms. Hanks has failed to set forth facts sufficient to establish a 7 plausible § 1983 claim, let alone demonstrate a likelihood of success on the merits. A § 1983 8 claim requires a plaintiff to prove “that the defendant deprived h[er] of a ‘constitutional right 9 while acting under color of state law.’” Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 10 1158 (9th Cir. 2021) (quoting Tatum v. City & Cnty. Of San Francisco, 441 F.3d 1090, 1094 (9th 11 Cir. 2006)). Ms. Hanks has instead offered a series of conclusory allegations, including that she 12 was the victim of a “hate crime,” “lied about,” “defamed,” and poisoned with “toxic smoke [and] 13 chemicals in [her] yard.” Dkt. No. 5 at 3, 5. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007) (a 14 plaintiff must supply more than “unadorned, the-defendant-unlawfully-harmed-me

15 accusation[s]” and “mere conclusory statements”). 16 Second, Ms. Hanks’ claim is not legally or factually complex. Cf. Agyeman v. Corr. 17 Corp. of Am., 390 F.3d 1101, 1103–1104 (9th Cir. 2004) (pro se prisoner’s meritorious case had 18 “triple complexity” that required skillful framing and advanced legal knowledge of Bivens 19 actions, the Federal Tort Claims Act, and the Federal Bureau of Prisons’ regulations). That she 20 might more articulately set forth the facts underlying her claim with the assistance of counsel is 21 not the test. Steiner v. Hammond, No. C13-5120-RBL/KLS, 2013 WL 3777068, at *2 (W.D. 22 Wash. July 16, 2013). Nor does her unsuccessful struggle to retain private counsel qualify as an 23 exceptional circumstance. See Curbow v. Clintsman, No. 2:21-CV-1420-TLF, 2021 WL 24 1 5051662, at *1 (W.D. Wash. Nov. 1, 2021) (“However, the inability to obtain counsel due to cost 2 or lack of availability, is not an exceptional circumstance[.]”). 3 CONCLUSION 4 Ms. Hanks’ motions for appointment of counsel are accordingly DENIED. 5

6 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 7 to any party appearing pro se at said party’s last known address. 8 Dated this 18th day of January, 2022. A 9 Lauren King 10 United States District Judge

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