Reinke v. Ternus

• Court: District Court, W.D. Washington
• Decided: June 20, 2024
• Docket: 3:24-cv-05398
• Status: Unknown

Opinion

1 2

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 BRIAN REINKE, CASE NO. C24-5398 BHS 8 Plaintiff, ORDER 9 v. 10 ROB TERNUS, et al., 11 Defendants. 12

13 THIS MATTER is before the Court on pro se plaintiff Brian Reinke’s motion to 14 appoint counsel, Dkt. 5. Magistrate Judge Fricke has granted Reinke in forma pauperis 15 status based on his indigency, though she did not screen his complaint. Dkt. 3. 16 Reinke alleges that he was falsely arrested and unlawfully imprisoned in October 17 2022. He claims he had “zero obligation to provide his ID” and that there was “no 18 evidence supporting the charges of burglary and DV.” Dkt. 4 at 7. 19 Reinke now asks the Court to appoint an attorney to represent him pro bono. He 20 asserts he has tried to contact attorneys online without success. Reinke reiterates that his 21 rights were violated and seeks various categories of damage for the defendants’ violation 22 of his First and Fourth Amendment rights. Dkt. 5. at 4. 1 A district court may permit indigent litigants to proceed in forma pauperis upon 2 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The Court has

3 broad discretion in resolving the application, but “the privilege of proceeding in forma 4 pauperis in civil actions for damages should be sparingly granted.” Weller v. Dickson, 5 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). The standard 6 governing in forma pauperis eligibility under 28 U.S.C. § 1915(a)(1) is “unable to pay 7 such fees or give security therefor.” A person is eligible if they are unable to pay the costs 8 of filing and still provide the necessities of life. See Rowland v. Cal. Men's Colony, Unit

9 II Men’s Advisory Council, 506 U.S. 194, 203 (1993) (internal quotations omitted). 10 Judge Fricke has already determined that Reinke cannot afford the filing fee. Dkt. 11 3. 12 In addition, however, a court should “deny leave to proceed in forma pauperis at 13 the outset if it appears from the face of the proposed complaint that the action is frivolous

14 or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 15 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). 16 An in forma pauperis complaint is frivolous if it has no arguable substance in law 17 or fact. Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin 18 v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A pro se Plaintiff’s complaint is to be

19 construed liberally, but like any other complaint it must nevertheless contain factual 20 assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 22 A claim for relief is facially plausible when “the plaintiff pleads factual content that 1 allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678.

3 Ordinarily, the Court will permit pro se litigants an opportunity to amend their 4 complaint to state a plausible claim. See United States v. Corinthian Colleges, 655 F.3d 5 984, 995 (9th Cir. 2011) (“Dismissal without leave to amend is improper unless it is 6 clear, upon de novo review, that the complaint could not be saved by any amendment.”). 7 There is no constitutional right to counsel for an indigent plaintiff in a civil case 8 unless the plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v.

9 Dept. of Social Servs., 452 U.S. 18, 25 (1981). However, 28 U.S.C. § 1915(e)(1) gives 10 the Court discretion to appoint counsel for indigent litigants who are proceeding in forma 11 pauperis. United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 12 1995). 13 The Court will appoint counsel under only “exceptional circumstances.” Id.

14 (quoting Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of 15 exceptional circumstances requires an evaluation of both ‘the likelihood of success on the 16 merits and the ability of the plaintiff to articulate his claims pro se in light of the 17 complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 18 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). These

19 factors must be viewed together before reaching a decision on whether to appoint counsel 20 under § 1915(e)(1). Id. 21 Reinke has not addressed this standard, and he has not met it. His claims are 22 purely conclusory. He has not articulated the “who what when why and how” of a 1 plausible claim for relief. Reinke has not yet pled a plausible claim for relief; he has 2 simply stated that the defendants violated his rights. That is not enough to obtain in forma

3 pauperis status and avoid paying the filing fee. 4 Nor has Reinke met the higher standard of demonstrating that he is likely succeed 5 on the merits of his claim, which he must do for this Court to appoint an attorney to 6 represent him at public expense. Reinke’s motion for a court-appointed attorney, Dkt. 5, 7 is DENIED. 8 Further, Reinke is ORDERED to SHOW CAUSE why his in forma pauperis

9 status should not be revoked and his complaint dismissed for failure to state a plausible 10 claim, within 21 days. He may do so by filing an amended complaint alleging a factual 11 narrative that adds up to a plausible claim against each defendant, as described above. 12 What did each defendant do that violated his constitutional rights, in what way? The 13 failure to file such an amended pleading will result in the dismissal of this case without

14 further notice. 15 IT IS SO ORDERED. 16 Dated this 20th day of June, 2024. A 17 18 BENJAMIN H. SETTLE 19 United States District Judge

20 21 22