United States District Court, D. Arizona
J. Markovich United States Magistrate Judge
Lola Wilkerson filed her complaint in Pima County Superior
Court on June 26, 2019, alleging fraudulent use of government
resources and violation of her constitutional rights. (Doc.
1-3 at 2-7). Plaintiff alleged Defendants LaWall and Otto
improperly relied upon Ariz. Rev. Stat. Ann. § 13-107
and that Defendant Mangus was responsible for fraudulent
statements, reports and actions committed by police officers.
Defendant Mangus removed the case to this Court on July 16,
2019. (Doc. 1).
following pleadings are currently pending before this Court:
Motion for More Definitive Statement Under Rule 12(e) by
Defendants LaWall and Otto (Doc. 1-3 at 17); Motion to
Dismiss by Defendants LaWall and Otto (Doc. 1-3 at 42);
Motion to Dismiss by Defendant Magnus (Doc. 6);
Plaintiff's Application to Proceed In Forma Pauperis
(Doc. 9); Plaintiff's Motion for Leave to Amend Complaint
(Doc. 10); Plaintiff's Motion to Provide Pro Bono
Attorney (Doc. 12); Motion to Dismiss Amended Complaint by
Defendants LaWall and Otto (Doc. 17); Defendants' Motion
to Strike Plaintiff's Submission of Statement to the
Reply for Denial of Dismissal (Doc. 18); Plaintiff's
Motion for Permission to Submit Evidence in Audio Form and
DVD Format (Doc. 21); Defendants' Motion to Strike
Plaintiff's Motion for Permission to Submit Evidence in
Audio Form and DVD Format and Plaintiff's Evidence
Submission (Doc. 23); and Plaintiff's Motion for
Extension (Doc. 25). The Court will consider each of these
Amended Complaint alleges violation of her Thirteenth and
Fourteenth Amendment rights by the Tucson Police Department
and the Pima County Attorney's Office. (Doc. 10-1).
Plaintiff alleges that she was sexually assaulted by her
husband in 1993 and that when she reported it to police, she
was told that no crime had been committed because at the
time, under Arizona law marriage implied consent.
Id. at 4. Plaintiff reported the 1993 assault again
in 2018. Plaintiff alleges Defendant Otto wrongly applied
Ariz. Rev. Stat. 13-107(B) to dismiss her case in 2018 based
on the 7-year statute of limitations, and that therefore the
Tucson Police Department and Pima County Attorney's
Office have broken state law and denied her equal protection
under the law. Id. at 4. Plaintiff alleges injuries
including mental health problems, loss of custody of her
children, and miscarriage as a result of spousal abuse. (Doc.
10-1 at 11). She requests $25, 000, 000 in damages from TPD
and $10, 000, 000 in damages from PCAO. Id.
Application to Proceed In Forma Pauperis
requests to proceed in forma pauperis. (Doc. 9).
However, there is no fee attributable to Plaintiff for the
removal of this action. Nonetheless, as the state court
granted Plaintiff a fee deferral (Doc. 1-3 at 8-9), the Court
will grant this request to be consistent with the state court
Motion to Appoint Counsel
requests a pro bono attorney be provided to assist her. (Doc.
12). She asserts that such assistance would provide her with
a more fair proceeding because Defendants are provided with
the assistance of government counsel, and because she suffers
from PTSD and is unable to work.
is no constitutional right to appointment of counsel in a
civil case. See Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266 (9th Cir. 1982). The appointment of
counsel in a civil rights case is required only when
exceptional circumstances are present. Aldabe v.
Aldabe, 616 F.2d 1089 (9th Cir. 1980). The Court may
request an attorney to represent a person proceeding in
forma pauperis who is unable to employ counsel. 28
U.S.C. § 1915(d). The Court does not have the power to
make a mandatory appointment of counsel but may request
assistance from volunteer counsel. Id.; United
States v. 30.64 Acres of Land, 795 F.2d 796 (9th Cir.
1986). The Court only does so in exceptional circumstances.
In determining whether to request the assistance of an
attorney, the Court considers the “likelihood of
success on the merits [and] the ability of the [plaintiff] 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); see also Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
withdrawn in part on reh'g en banc, 154 F.3d 952
(9th Cir. 1998).
present case, the Court does not find the required
exceptional circumstances. Plaintiff has not provided any
information to conclude that there is a likelihood of
success. Rather, at this point, the documents before the
Court simply indicate that there is a dispute between the
parties. Further, Plaintiff's assertion that she suffers
from PTSD and is unable to work does not indicate that she is
unable to articulate her claims in light of the complexity of
the claims. Rather, Plaintiff has been able to articulate her
claims and requests and has done a credible job in presenting
motions and filing supporting papers on behalf of her case.
Jackson v. Dallas Police Dep't, 811 F.2d 260
(5th Cir. 1986). Indeed, the Court finds that any difficulty
Plaintiff may be having in presenting her claims pro se is
not based on the complexity of the legal issues involved but
rather on the general difficulty of litigating pro se.
See generally Wilborn v. Escalderon, 789 F.2d 1328
(9th Cir. 1986). Accordingly, Plaintiff's Motion for
Appointment of Counsel will be denied.
for More Definitive Statement Under Rule 12(e)
LaWall and Otto filed a motion in superior court requesting
that Plaintiff be ordered to provide a more definite
statement of the claims alleged, as well as the specific
facts giving rise to them as required by Ariz. R. Civ. P. 8
and 12. (Doc. 1-3 at 17-23). Plaintiff filed a response
wherein she provided more detail (Doc. 1-3 at 28-35), and
also filed an Amended Complaint which includes more detail
12(e) motion for a more definite statement is proper when the
pleading at issue “is so vague or ambiguous that the
party cannot reasonably prepare a response.”
Fed.R.Civ.P. 12(e). However, a motion for a more definite
statement must be considered in light of the liberal pleading
standards of Rule 8(a) that a complaint need only be a
“short and plain statement of the claim showing that
the pleader is entitled to relief [.]” “The Rule
means what it says [and a] claimant need not set out in
detail the facts upon which he bases his claim.”
Castillo v. Norton, 219 F.R.D. 155, 159 (D. Ariz.
2003) (internal quotations and citations omitted).
“Rather, the complaint need only provide the defendant
fair notice of what the plaintiff's claim is and the
grounds upon which it rests.” Id.; see
Sagan v. Apple Computer, Inc., 874 F.Supp. 1072, 1077
(C.D. Cal. 1994) (“Motions for a more definite
statement are viewed with disfavor and are rarely granted
because of the minimal pleading requirements of the Federal
Rules.”). Some district courts have noted that
“Rule 12(e) motions attack the intelligibility of the
complaint, not the lack of detail, and are properly denied
where the complaint notifies the defendant of the substance
of the claims asserted.” United States v. Sequel
Contractors, Inc., 402 F.Supp.2d 1142, 1147 (C.D. Cal.
Court finds Plaintiff has provided more details in her
response and Amended Complaint. Therefore, the Court will
grant Defendants' request for a more definitive statement
and further finds that Defendants' request is satisfied
by Plaintiffs' filings.
Motion for Leave to Amend Complaint
requests leave to amend her complaint to meet federal court
criteria and to provide additional information regarding her
case. (Doc. 10). Plaintiff attached a proposed Amended
Complaint to her motion. (Doc. 10-1). Defendants did not file
a response. However, Defendants LaWall and Otto subsequently
filed a Motion to Dismiss the Amended Complaint for failure
to comply with LRCiv 15.1(b). (Doc. 17).
to LRCiv 15.1(b),
If a party files an amended pleading as a matter of course or
with the opposing party's written consent, the amending
party must file a separate notice of filing the amended
pleading. The notice must attach a copy of the amended
pleading that indicates in what respect it differs from the
pleading which it amends, by bracketing or ...