Ma v. Densmore

• Court: District Court, W.D. Washington
• Decided: June 30, 2021
• Docket: 2:20-cv-01355
• Status: Unknown

Opinion

HONORABLE RICHARD A. JONES 1

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 ROLAND MA, 9

Plaintiff, 10 Case No. 2:20-cv-1355-RAJ v. 11 ORDER

ESTHER PARK DENSMORE and 12 WASHINGTON CARE SERVICES, 13 Defendants, 14 v. 15 WALDEN UNIVERSITY, LLC., 16 Third-Party Defendant. 17 18 I. INTRODUCTION 19 Ten motions are before the Court. Two are brought by Defendants: Defendant 20 Esther Park Densmore and Defendant Washington Care Services’ Motion to Dismiss 21 (Dkt. # 59) and Third-Party Defendant Walden University’s Motion to Strike and 22 Dismiss (Dkt. # 83). Eight are brought by Plaintiff Roland Ma: Motion for 23 Reconsideration (Dkt. # 38), Motion for Leave to File Document Under Seal (Dkt. # 42), 24 Motion for Leave to File Amended Complaint (Dkt. # 46), Application for Court- 25 Appointed Counsel (Dkt. # 47), Motion for Order to Show Cause (Dkt. # 52), Ex-Parte 26 Motion to Strike (Dkt. # 65), Second Motion to Strike (Dkt. # 89), and Ex-Parte Motion 27 for Protective Order (Dkt. # 91). 1 Having considered the submissions of the parties, the relevant portions of the 2 record, and the applicable law, the Court finds that oral argument is unnecessary. The 3 Court’s rulings on the motions are set forth below and summarized in the conclusion of 4 this Order. 5 II. BACKGROUND 6 Mr. Ma began this action on April 14, 2020, when he moved for a temporary 7 restraining order (“TRO”) against Defendants Esther Park Densmore and Washington 8 Care Services (together, “WCS Defendants”). Dkt. # 2. He filed a complaint two days 9 later. Dkt. # 7. The Court denied the motion. Dkt. # 36. 10 Mr. Ma moved for a TRO three more times after that. Dkt. ## 48, 92, 98. The 11 Court denied each motion. Dkt ## 68, 96, 102. After the Court denied his second motion 12 for a TRO, Mr. Ma appealed the denial order. Dkt. ## 73. Months ago, the Ninth Circuit 13 affirmed the Court’s denial. Dkt. ## 104, 105. 14 TRO motion practice aside, the parties have filed several motions. The motions 15 are ripe and now pending before the Court. Dkt. ## 38, 42, 46, 47, 52, 59, 65, 83, 89, 91. 16 III. DISCUSSION 17 The Court divides its analysis into two sections, dispositive motions and non- 18 dispositive motions, and addresses each motion type in turn. The Court begins with 19 Defendants’ dispositive motions. 20 A. Dispositive Motions 21 i. Legal Standards 22 (1) Federal Rule of Civil Procedure 12(b)(5) 23 It is axiomatic that the court cannot exercise jurisdiction over a defendant without 24 proper service of process. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 25 U.S. 344, 350 (1999); S.E.C. v. Ross, 504 F. 3d 1130, 1138-39 (9th Cir. 2007) (“[I]n the 26 absence of proper service of process, the district court has no power to render any 27 judgment against the defendant’s person or property unless the defendant has consented 1 to jurisdiction or waived lack of process.”). Federal Rule of Civil Procedure 12(b)(5) 2 allows a defendant to move to dismiss an action where service of process of a summons 3 and complaint is insufficient. See Fed. R. Civ. P. 12(b)(5). 4 (2) Federal Rule of Civil Procedure 12(b)(6) 5 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss 6 a complaint for failure to state a claim. The court must assume the truth of the 7 complaint’s factual allegations and credit all reasonable inferences arising from those 8 allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The court “need not 9 accept as true conclusory allegations that are contradicted by documents referred to in the 10 complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 11 2008). Instead, the plaintiff must point to factual allegations that “state a claim to relief 12 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If 13 the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts 14 consistent with the allegations in the complaint” that would entitle the plaintiff to relief. 15 Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 16 On a motion to dismiss, a court typically considers only the contents of the 17 complaint. However, a court is permitted to take judicial notice of facts that are 18 incorporated by reference in the complaint. United States v. Ritchie, 342 F.3d 903, 908 19 (9th Cir. 2003) (“A court may . . . consider certain materials documents attached to the 20 complaint, documents incorporated by reference in the complaint.”); Mir v. Little Co. of 21 Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“[I]t is proper for the district court to 22 ‘take judicial notice of matters of public record outside the pleadings’ and consider them 23 for purposes of the motion to dismiss.”) (quoting MGIC Indem. Corp. v. Weisman, 803 24 F.2d 500, 504 (9th Cir. 1986)). 25 ii. Factual Allegations 26 For purposes of Defendants’ Rule 12(b)(6) motions, the Court relies solely on the 27 factual allegations set forth in the complaint. Dkt. # 7. According to the complaint, on August 26, 2020, Ms. Densmore revoked Mr. Ma’s authority to access “doc halo,” a 1 “HIPAA-compliance communication app.” Id. at 1. Ms. Densmore did so “based on an 2 accusation” made by an employee that Mr. Ma “ha[d] been harassing [the employee] via 3 text” message. Id. The complaint alleges that Mr. Ma was afforded “no due process for 4 this accusation at all.” Id. Later, on September 12, 2020, Ms. Densmore “permanently 5 suspended” Mr. Ma from entering “the building” and from completing the remaining 6 weeks of his internship. Id. at 2. What is more, the complaint alleges that Defendant 7 Walden University LLC (“Walden University” or “University”) further violated his rights 8 by “fail[ing] to advocate for [him]” and failing to “remind Ms. Densmore” of his “rights 9 to due process pursuant to the Fifth and Fourteenth Amendments to the United States 10 Constitution, and the Constitution of the State of Washington, Article I, Section 3, 5 and 11 9, for personal rights.” Id. 12 iii. WCS Defendants’ Motion to Dismiss (Dkt. # 59) 13 14 WCS Defendants seek to dismiss the complaint for two reasons. First, they say 15 that Mr. Ma has not properly served them with the complaint, warranting dismissal under 16 Rules 12(b)(2), 12(b)(4), and 12(b)(5). Second, they say that Mr. Ma has failed to state a 17 claim, warranting dismissal under Rule 12(b)(6). 18 (1) Insufficient Service of Process 19 Once a defendant challenges service of process, the plaintiff bears the burden of 20 establishing the validity of service of process under Federal Rule of Civil Procedure 4. 21 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “A signed return of service 22 constitutes prima facie evidence of valid service ‘which can be overcome only by strong 23 and convincing evidence.’” S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 24 (9th Cir. 2007) (quoting O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 25 (7th Cir. 1993)). A defendant may not rebut this presumption “by a mere conclusory 26 denial of service.” Freeman v. ABC Legal Servs. Inc., 827 F. Supp. 2d 1065, 1075 (N.D. 27 Cal. 2011). When factual issues exist, to determine whether service was proper, courts 1 may review evidence outside the pleadings, such as affidavits, depositions, oral 2 testimony, or other admissible evidence. Tart Optical Enterprises, LLC v. Light Co., No. 3 2:16-cv-08061-JAK-MRW, 2017 WL 5957728, at *3 (C.D. Cal. Sept. 27, 2017) 4 (collecting cases). 5 Mr. Ma has filed with this Court a proof of service. Dkt. # 31-1. In that 6 document, a supposedly licensed process server served Ms. Densmore and, through its 7 registered agent, Washington Care Services. Id. Mr. Ma has thus met his prima facie 8 burden. WCS Defendants argue, however, that they were not in fact served. Dkt. # 59 at 9 5-9. 10 They support their argument with three sworn affidavits. Mr. Ma’s proof of 11 service purports that Ms. Densmore was served “on property” on September 18, 2020, 12 but she testifies that on that date she was not personally served with the summons. Dkt. 13 # 61 ¶¶ 5-6. Instead, she says that the summons was delivered to a fax machine at 14 Washington Care Center a day earlier. Id. Similarly, Mr. Ma’s proof of service purports 15 that Washington Care Services was served through its registered agent, Jim Krieger. Dkt. 16 # 31-1. The proof of service represents that the process server served Mr. Krieger at his 17 personal residence on 1614 24th Avenue, Seattle, WA 98122, when the process server was 18 unable to locate him at 2821 S. Walden Street, Seattle, WA 981444. Id. But Mr. Krieger 19 testifies that he was never served at his personal residence. Dkt. # 62 ¶ 6. Indeed, he 20 says that he does not have a residence at 1614 24th Avenue at all. Id. Instead, he says 21 that a package was addressed to him at Washington Care Center and that the package, 22 sent via United Parcel Service, contained a copy of the summons. Id. ¶ 9; Dkt. # 62-1. 23 Finally, WCS Defendants offer a declaration from counsel for Walden University. Dkt. 24 # 63. Like the two other defendants, Walden University testifies that it was not properly 25 served despite Mr. Ma’s proof of service to the contrary. Compare Dkt. # 31 with Dkt. 26 # 63. 27 The Court determines that WCS Defendants have met their burden to rebut Mr. 1 Ma’s prima facie evidence. Their sworn testimony and exhibits—including evidence of 2 Mr. Ma, through his company “Handsomeland,” attempting to personally serve 3 Washington Care Services through United Parcel Service (Dkt. # 62-1)—is strong and 4 convincing evidence that contradicts the proof of service. Thus, the Court concludes that 5 WCS Defendants were not properly served under Rule 4. 6 When service is insufficient, courts have discretion to dismiss an action or to 7 quash service. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) 8 (citing Stevens v. Sec. Bank Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)). The 9 Court exercises its discretion by retaining this action but quashing service. WCS 10 Defendants have long had notice of this action, mitigating any unfair prejudice caused by 11 insufficient service. Further, based on this record, the Court has no reason to believe that 12 Mr. Ma is unable to properly serve them. Exercising its discretion under Rule 4(m), the 13 Court extends the time for Mr. Ma to effect proper service. Mr. Ma must serve WCS 14 Defendants within 30 days of the date of this Order. Also, within 30 days of this Order, 15 Mr. Ma must file a submission with the Court clearly establishing his proper service 16 of the summons and copy of the complaint on WCS Defendants. 17 (2) Failure to State a Claim 18 Next, WCS Defendants argue that Mr. Ma’s complaint fails to state a claim and 19 should be dismissed under Rule 12(b)(6). What claims Mr. Ma asserts in his complaint 20 are unclear. Broadly, Mr. Ma alleges that Ms. Densmore has “violated every single 21 constitution [sic] and statutory rights [sic]” that he has. Dkt. # 7 at 2. Elsewhere in the 22 complaint, he suggests that as a student his “rights to due process pursuant to the Fifth 23 and Fourteenth Amendments to the United States Constitution, and the Constitution of 24 the State of Washington, Article I, Section 3, 5 and 9” have been violated. Id. The Court 25 presumes, then, that Mr. Ma’s complaint is fundamentally one for a deprivation of 26 constitutional rights. 27 Mr. Ma may not seek relief directly under the United States Constitution; he must 1 use 42 U.S.C. § 1983. Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th 2 Cir. 1992) (“Plaintiff has no cause of action directly under the United States Constitution. 3 We have previously held that a litigant complaining of a violation of a constitutional right 4 must utilize 42 U.S.C. § 1983.”). The Court presumes that Mr. Ma’s claims are brought 5 under § 1983. Bank of Lake Tahoe v. Bank of Am., 318 F.3d 914, 917 (9th Cir. 2003) 6 (construing a claim for “equal protection” violations “under the umbrella of § 1983”). 7 “To state a claim for relief in an action brought under § 1983, [plaintiffs] must 8 establish that they were deprived of a right secured by the Constitution or laws of the 9 United States, and that the alleged deprivation was committed under color of state law.” 10 Heineke v. Santa Clara Univ., 965 F.3d 1009, 1012 (9th Cir. 2020) (alteration in original) 11 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Section 1983 12 does not reach “merely private conduct, no matter how discriminatory or wrong.” Sutton 13 v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Am. 14 Mfrs., 526 U.S. at 50). 15 A court begins with the presumption that private acts do not constitute state action. 16 Heineke, 965 F.3d at 1012. To overcome that presumption, a plaintiff must show that the 17 state “has exercised coercive power or has provided such significant encouragement that 18 the challenged action must be considered that of the state [or] the state knowingly accepts 19 the benefits derived from unconstitutional behavior.” Id. (internal quotation marks and 20 citations omitted). 21 Nowhere in his complaint does Mr. Ma identify a state actor. At bottom, he 22 claims that he was injured by Ms. Densmore, a private individual, and Washington Care 23 Services. Dkt. # 7. There is no allegation that Washington Care Services is a state actor. 24 And there are no factual allegations suggesting that WCS Defendants’ actions should be 25 imputed to the state. Thus, Mr. Ma fails to state a § 1983 claim. 26 Mr. Ma’s claims under the Washington Constitution also fail. The sections of the 27 constitution that Mr. Ma cites in his complaint are plainly inapplicable. 1 Both Sections 3 and 5 of the state constitution require state action. State v. 2 McCullough, 784 P.2d 566, 568 (Wash. Ct. App. 1990) (“[I]n the civil context, 3 Washington has refused to find a violation of the state due process provision absent state 4 action.”) (Wash. Const. art. I, § 3); Southcenter Joint Venture v. Nat’l Democratic Policy 5 Comm., 780 P.2d 1282, 1288 (Wash. 1989) (“[A]lthough an express reference to “state 6 action” is absent from the free speech provision of our state constitution, a “state action” 7 limitation is implicit therein.”) (Wash. Const. art. I, § 5). As explained above, Mr. Ma 8 has failed to allege any state action. 9 And Section 9 of the state constitution applies to criminal—not civil—cases. 10 Wash. Const. art. I, § 9 (“No person shall be compelled in any criminal case to give 11 evidence against himself, or be twice put in jeopardy for the same offense.”) (emphasis 12 added). WCS Defendants’ internal investigation of Mr. Ma was not in the context of a 13 criminal proceeding, Dkt. # 7 at 1-2, therefore this section does not apply. 14 State action aside, Mr. Ma’s complaint fails for an even simpler reason. Absent 15 guidance from the legislature, there is no private right of action for violations of the 16 Washington Constitution at all. Dunn v. City of Seattle, 420 F. Supp. 3d 1148, 1156 17 (W.D. Wash. 2019) (“Washington law has no counterpart to 42 U.S.C. § 1983, and 18 Washington courts have rejected attempts to create a private right of action for damages 19 under the Washington Constitution . . . .” (citations omitted)) (collecting cases). Thus, 20 Mr. Ma fails to state a claim under the Washington Constitution, and his failure cannot be 21 cured. 22 In sum, the Court QUASHES service of the summons on WCS Defendants. The 23 Court also DISMISSES the complaint as to WCS Defendants. Mr. Ma’s § 1983 claims 24 are DISMISSED with leave to amend; his claims for violations of the Washington 25 Constitution are DISMISSED with prejudice. 26 iv. Walden University’s Motion to Strike and Dismiss (Dkt. # 83) 27 Walden University moves to strike and dismiss the complaint. Dkt. # 83. Mr. Ma 1 does not oppose the motion. 2 (1) Third-Party Defendant 3 The University seeks to strike the complaint “[t]o the extent Mr. Ma raises a third- 4 party complaint against [it].” Dkt. # 83 at 3. In his complaint, Mr. Ma names the 5 University as a “Third-Party Defendant.” Dkt. # 7 at 1. The complaint also contains a 6 section entitled “Third-Party Complaint.” Id. at 2. The University argues that it is not in 7 fact a third-party defendant under Rule 14 and that the complaint should be stricken 8 accordingly. Dkt. # 83 at 3-4. 9 The Court agrees with the University: it is not a proper third-party defendant under 10 Rule 14, which is plainly inapplicable. Under Rule 14(b), a plaintiff may bring in a third 11 party “[w]hen a claim is asserted against [him].” Fed. R. Civ. P. 14. Here, no party is 12 asserting a claim against Mr. Ma, and thus the rule does not apply. The Court GRANTS 13 the University’s motion to strike. All references to Walden University as a “third-party 14 defendant” are hereby STRICKEN from the record. Because Mr. Ma is a pro se 15 plaintiff, the Court will construe his complaint as asserting claims against the University 16 as an ordinary Defendant. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 17 (9th Cir. 1988) (“In civil rights cases where the plaintiff appears pro se, the court must 18 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.”). 19 (2) Failure to State a Claim 20 Walden University also seeks to dismiss all claims asserted against it. Again, 21 what those claims are exactly is unclear. 22 In his complaint, Mr. Ma alleges that the University “failed to advocate” for him 23 and “remind Ms. Densmore” of his “rights to due process pursuant to the Fifth and 24 Fourteenth Amendments to the United States Constitution, and the Constitution of the 25 State of Washington, Article I, Section 3, 5 and 9.” Dkt. # 7 at 2. To the extent that Mr. 26 Ma asserts constitutional claims against the University, those claims fail for the same 27 reasons explained in Section III.A.ii.2 supra. Mr. Ma fails to allege any state action. The 1 complaint contains no allegation that Walden University is a state actor. And Mr. Ma 2 may not assert a private right of action under the Washington Constitution. All 3 constitutional claims asserted against Walden University are therefore dismissed. 4 Mr. Ma also appears to assert claims under both Section 504 of the Rehabilitation 5 Act and under the Americans with Disabilities Act (“ADA”). Dkt. # 7 at 2. He alleges 6 that the University “failed to protect” him and “enforce the accommodation as stated, 7 pursuant to Section 504 and APA [sic] Title II.” Id. Mr. Ma fails to state a claim under 8 either statute. 9 A plaintiff bringing suit under Section 504 must show that (1) he is a qualified 10 individual with a disability, (2) he was denied “a reasonable accommodation that [he] 11 needs in order to enjoy meaningful access to the benefits of public services,” (3) he was 12 denied the benefits of a program by reason of the disability, and (4) the program 13 providing the benefit receives federal financial assistance. A.G. v. Paradise Valley 14 Unified School Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016); Mark H. v. Hamamoto, 15 620 F.3d 1090, 1097 (9th Cir. 2010). Mr. Ma’s complaint fails to plead a Section 504 16 claim in almost every regard. He does not plead that he is a qualified individual with a 17 disability, that he was denied benefits of a program because of his disability, or that the 18 program received federal financial assistance. 19 Mr. Ma’s ADA claim, on the other hand, fails for the simple reason that Title II of 20 the ADA does not apply to private universities. Title II of the ADA applies to “public 21 entit[ies].” 42 U.S.C. § 12132. Public entities include only state or local government; 22 “any department, agency, special purpose district, or other instrumentality of a State or 23 States or local government”; and “the National Railroad Passenger Corporation, and any 24 commuter authority.” Id. § 12131. The complaint identifies Walden University as an 25 “[o]nline [u]niversity” and a limited liability corporation. Dkt. # 7 at 1. Title II of the 26 ADA, then, plainly does not apply. 27 In sum, the Court DISMISSES the complaint as to Walden University. Mr. Ma’s 1 § 1983, Section 504, and ADA claims are DISMISSED with leave to amend; his claims 2 for violations of the Washington Constitution are DISMISSED with prejudice. 3 B. Non-Dispositive Motions 4 The remaining eight motions, filed by Mr. Ma, are non-dispositive. The Court 5 addresses each in the order they were filed. 6 i. Motion for Reconsideration (Dkt. # 38) 7 Motions for reconsideration are disfavored under the Local Rules for the Western 8 District of Washington. Local Rules W.D. Wash. LCR 7(h)(1). “[I]n the absence of a 9 showing of manifest error in the prior ruling or a showing of new facts or legal authority 10 which could not have been brought to [the Court’s] attention earlier with reasonable 11 diligence,” such motions will ordinarily be denied. Id. “A motion for reconsideration 12 ‘may not be used to raise arguments or present evidence for the first time when they 13 could reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc. 14 v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original) 15 (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). 16 Months ago, the Court denied Mr. Ma’s first motion for TRO. Dkt. # 36. The 17 Court denied that motion for the same reasons it grants WCS Defendants’ motion to 18 dismiss here: Mr. Ma failed to identify a state actor. Id. Mr. Ma later filed a motion for 19 reconsideration. Dkt. # 38. He claims that “new evidence[]” has surfaced after he moved 20 for a TRO. Id. at 1; Dkt. ## 38-1, 38-2. He also contests, without any supporting 21 evidence, some of the Court’s factual findings, id. at 2-3, that were not material to the 22 Court’s ultimate conclusion that Mr. Ma failed to identify a state actor. 23 The Court has reviewed Mr. Ma’s motion and his “new evidence” and denies 24 reconsideration. First, Mr. Ma does not explain why the evidence could not have been 25 brought to the Court’s attention earlier. Second, and more importantly, Mr. Ma’s 26 evidence and argument fail to address the critical deficiency of his motion. Mr. Ma still 27 fails to show why the actions of Ms. Densmore, a private individual, and Washington 1 Care Services may fairly be imputed to the state. Thus, the Court DENIES Mr. Ma’s 2 motion for reconsideration. 3 ii. Motion for Leave to File Document Under Seal (Dkt. # 42) 4 In support of her response to Mr. Ma’s first motion for a TRO, Ms. Densmore 5 submitted a declaration. Dkt. # 24. In her declaration, she testified that Mr. Ma reported 6 that a WCC patient threatened suicide and that, after investigation, WCC learned that the 7 purported “suicide tool” was in fact “a piece of equipment that [the patient] uses for arm 8 exercises.” Id. ¶ 5. In a one-sentence motion, Mr. Ma now requests that he be able to file 9 a picture of that exercise equipment under seal because “a picture is worth a thousand 10 words.” Dkt. # 42. Mr. Ma does not explain what motion or matter he wants to attach 11 that picture to, and he does not explain why the picture should be sealed from the public. 12 For those reasons, the Court DENIES Mr. Ma’s motion to seal. 13 iii. Motion for Leave to File Amended Complaint (Dkt. # 46) 14 Mr. Ma seeks leave to file an amended complaint. Dkt. # 46. His motion is 15 largely unintelligible. At bottom, however, he says, “before the defendants file a 12(b)(6) 16 motion, . . . it would be more fruitful to seek permission to file an amended complaint.” 17 Id. at 3. The Court has already granted Defendants’ motions to dismiss and has granted 18 leave to amend various claims. The Court thus DENIES Mr. Ma’s motion for leave to 19 file an amended complaint as moot. 20 iv. Application for Court-Appointed Counsel (Dkt. # 47) 21 Generally, a person has no right to counsel in civil actions. See Storseth v. 22 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, a court may under 23 “exceptional circumstances” appoint counsel for indigent civil litigants pursuant to 28 24 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 25 2004). 26 When determining whether “exceptional circumstances” exist, a court must 27 consider “the likelihood of success on the merits as well as the ability of the petitioner to 1 articulate his claims pro se in light of the complexity of the legal issues involved.” 2 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Yet neither of these considerations 3 is dispositive; they must instead be viewed together. Palmer v. Valdez, 560 F.3d 965, 4 970 (9th Cir. 2009). A plaintiff must plead facts showing that she has an insufficient 5 grasp of her case or the legal issue involved and has an inadequate ability to articulate the 6 factual basis of her claim. Agyeman, 390 F.3d at 1103. Although most parties would 7 benefit from representation by an attorney, that is not the standard for appointment of 8 counsel in a civil case. See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), 9 overruled on other grounds, 154 F. 3d 952 (9th Cir. 1998) (finding that a pro se litigant 10 may be better served with the assistance of counsel is not the test). A plaintiff must show 11 exceptional circumstances. 12 Mr. Ma requests that the Court appoint counsel to represent him. Dkt. # 47. He 13 fails to identify, however, any “exceptional circumstances.” Four times now, he has been 14 denied a TRO because he has failed to show a likelihood of success on the merits. Dkt. 15 ## 36, 68, 96, 102. And based on his voluminous filings in this case, the Court finds that 16 he has the ability to articulate his claims. Further, his claims are not that complex: 17 ultimately, he believes that three Defendants deprived him of his constitutional rights. 18 The Court’s rejection of his claims to date does not mean that the claims themselves are 19 complex. The Court DENIES Mr. Ma’s motion for appointed counsel. 20 v. Motion for Order to Show Cause (Dkt. # 52) 21 Mr. Ma moves the Court for an order to show cause requiring Wendy H. Li to 22 explain why she has not complied with a subpoena. Dkt. # 52; Dkt. # 52-1. Mr. Ma also 23 requests that Ms. Li be held in contempt of Court for failing to respond to his motion, for 24 failing to comply with the subpoena that he supposedly personally served, and for 25 “unclean hands practice.” Dkt. # 86. 26 WCS Defendants oppose the motion. Dkt. # 88. In their response, they argue that 27 Mr. Ma failed to notify them of the subpoena, violating Rule 45. Id. at 2. They also 1 argue that, after obtaining his first subpoena, Mr. Ma later filed a praecipe requesting new 2 subpoenas. Id. Those later-filed subpoenas, they say, were served and timely objected 3 to. Id. Overall, they argue that is unclear which subpoena Ms. Li allegedly failed to 4 respond to given that this litigation has been “confusing and chaotic.” Id. at 3. 5 The Court agrees with WCS Defendants: Mr. Ma’s prolific and incomprehensible 6 submissions to this Court have made this litigation confusing and chaotic. The instant 7 motion for an order to show cause is no exception. The motion does not explain when 8 Ms. Li was served or how she was served or, more importantly, what subpoena she was 9 actually served with. Thus, based on this record, the Court DENIES the motion. 10 vi. Ex-Parte Motion to Strike (Dkt. # 65) 11 As discussed in Section III.B.ii supra, in support of her opposition to Mr. Ma’s 12 first motion for a TRO, Ms. Densmore submitted a declaration. Dkt. # 24. In that 13 declaration, the footer contained the text “Notice of Appearance.” Id. Observing that 14 Ms. Densmore is a Defendant in this action and not an attorney, Mr. Ma requests that the 15 Court strike the declaration. Dkt. # 65. 16 The “Notice of Appearance” in the footer of Ms. Densmore’s declaration appears 17 to be a clerical error. Ms. Densmore is not an attorney, she is represented by counsel, and 18 she has never attempted to appear in this matter. And in her later declarations with this 19 Court, she has corrected the footer to remove the “Notice of Appearance” language. See, 20 e.g., Dkt. # 61. In any event, the Court GRANTS in part Mr. Ma’s motion. The Court 21 does not strike the entire declaration but only the footer of the declaration, the portion 22 that refers to the document as a “Notice of Appearance.” Dkt. # 24. 23 vii. Second Motion to Strike (Dkt. # 89) 24 Mr. Ma seeks to strike WCS Defendants’ response to one of his motions. Dkt. 25 # 89. Measuring just two sentences long, his motion to strike argues that the response 26 should be stricken for failing to comply with the Court’s Standing Order. Id. The 27 Standing Order, he observes, states that “the Court does not allow citations in footnotes 1 or endnotes.” Dkt. # 12. ¶ 10. 2 The Court will not strike WCS Defendants’ response, Dkt. # 88, on that basis. To 3 be sure, the Court strongly disfavors footnoted legal citations, which serve as an end-run 4 around page limits and formatting requirements dictated by the Local Rules. See Local 5 Rules W.D. Wash. LCR 7(e). Moreover, several courts have observed that “citations are 6 highly relevant in a legal brief” and including them in footnotes “makes brief-reading 7 difficult.” Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 8 n.1 (D. Ariz. Jan. 24, 2014). Having reviewed the response, however, the Court finds 9 that WCS Defendants’ use of footnotes, so far, has been appropriate. The response is 10 well under the page limit, and, for the most part, the footnotes contain supplemental 11 information not “citations” to legal authority. Thus, the Court DENIES Mr. Ma’s second 12 motion to strike. 13 viii. Ex-Parte Motion for Protective Order (Dkt. # 91). 14 Mr. Ma moves for a protective order. Dkt. # 91. His motion is nothing more than 15 a series of generic rule statements about protective orders. Id. It contains no intelligible 16 request, other than a protective order from a “requested deposition.” Id. at 3. Because it 17 lacks any serious application of law to facts, the Court DENIES the motion for a 18 protective order. 19 IV. CONCLUSION 20 For the reasons stated above, the Court finds and ORDERS: 21 (1) WCS Defendants’ Motion to Dismiss (Dkt. # 59) is GRANTED in part and 22 DENIED in part. Mr. Ma’s § 1983 claims against the WCS Defendants are 23 DISMISSED with leave to amend; his claims for violations of the 24 Washington Constitution are DISMISSED with prejudice. Service on the 25 WCS Defendants is QUASHED. The Court extends the time for Mr. Ma to 26 effect proper service on WCS Defendants. If Mr. Ma amends his complaint, he 27 must effect proper service of the summons and a copy of the amended 1 complaint within 30 days of the date of this Order. Also, within 30 days of 2 this Order, Mr. Ma must file a submission with the Court clearly 3 establishing his proper service. 4 (2) Walden University’s Motion to Strike and Dismiss (Dkt. # 83) is GRANTED. 5 All references to Walden University as a “third-party defendant” are hereby 6 STRICKEN from the record. Mr. Ma’s § 1983, Section 504, and ADA claims 7 against Walden University are DISMISSED with leave to amend; his claims 8 for violations of the Washington Constitution are DISMISSED with 9 prejudice. 10 (3) Mr. Ma’s Motion for Reconsideration (Dkt. # 38) is DENIED. 11 (4) Mr. Ma’s Motion for Leave to File Document Under Seal (Dkt. # 42) is 12 DENIED. 13 (5) Mr. Ma’s Motion for Leave to File Amended Complaint (Dkt. # 46) is 14 DENIED as moot. 15 (6) Mr. Ma’s Application for Court-Appointed Counsel (Dkt. # 47) is DENIED. 16 (7) Mr. Ma’s Motion for Order to Show Cause (Dkt. # 52) is DENIED. 17 (8) Mr. Ma’s Ex-Parte Motion to Strike (Dkt. # 65) is GRANTED in part. The 18 footer of the declaration (Dkt. # 24), the portion that refers to the document as 19 a “Notice of Appearance,” is hereby STRICKEN from the record. 20 (9) Mr. Ma’s Second Motion to Strike (Dkt. # 89) is DENIED. 21 (10) Mr. Ma’s Ex-Parte Motion for Protective Order (Dkt. # 91) is DENIED. 22 23 DATED this 30th day of June, 2021. 24 A 25

26 The Honorable Richard A. Jones 27 United States District Judge