Wilkerson v. LaWall

          ORDER

          Eric J. Markovich United States Magistrate Judge

         Plaintiff 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).

         The 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 matters below.

         I. Factual Background

         Plaintiff's 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.

         II. Application to Proceed In Forma Pauperis

         Plaintiff 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 ruling.

         III. Motion to Appoint Counsel

         Plaintiff 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.

         There 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).

         In the 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.

         IV.Motion for More Definitive Statement Under Rule 12(e)

         Defendants 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 (Doc. 10-1).

         A Rule 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. 2005).

         The 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.

         V. Motion for Leave to Amend Complaint

         Plaintiff 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).

         Pursuant 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 ...