Carroll v. Biden ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 JONATHAN CARROLL, CASE NO. C22-5368JLR 11 Plaintiff, ORDER ON MOTION TO v. APPOINT COUNSEL 12 JOE BIDEN, 13 Defendant. 14 15 Before the court is pro se Plaintiff Jonathan Carroll’s motion for appointment of 16 counsel. (Mot. (Dkt. # 2).) Mr. Carroll brings a Racketeer Influenced and Corrupt 17 Organizations Act (“RICO”) claim against President Joe Biden for unspecified 18 “environmental violations.” (See Compl. (Dkt. # 1) at 3.) Having considered the motion, 19 the relevant portions of the record, and the applicable law, the court DENIES Mr. 20 Carroll’s motion. 21 The appointment of counsel for a pro se litigant in a civil case “is a privilege and 22 not a right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). 1 A court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. 2 § 1915(e)(1) but should do so “only in exceptional circumstances.” Palmer v. Valdez, 3 560 F.3d 965, 970 (9th Cir. 2009). When determining whether exceptional circumstances 4 justify the appointment of counsel, the court considers “the likelihood of success on the 5 merits and the ability of the petitioner to articulate his claims pro se in light of the 6 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 7 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither 8 of these considerations is dispositive; instead, they must be viewed together. Id. 9 Mr. Carroll’s form motion contains few supplemental details. (See Mot.) It 10 establishes only that he has not been granted permission to proceed in forma pauperis 11 (“IFP);1 that his efforts to secure his own counsel have included searching online and 12 contacting “10 or so” attorneys “over the last 30 days”; and that no state or federal 13 agency has determined that there is reasonable cause to believe the allegations in his 14 complaint are true. (See Mot. at 1-3.) Thus, the court cannot conclude from Mr. 15 Carroll’s motion that he is “unable to afford counsel,” which is reason enough to deny his 16 motion. See 28 U.S.C. § 1915(e)(1). Mr. Carroll also neglects to state why his claim is 17 likely to succeed, though it is clear from the court’s preliminary review of the complaint 18 that success is not likely. (See generally Compl.) The court reaches this finding because 19 Mr. Carroll sues the President under RICO for unspecified environmental violations 20 committed “through actions/inaction of various Government agencies” (see id. at 5), and 21 // 22 1 Mr. Carroll has not sought to proceed IFP. (See generally Dkt.) 1 such claims are unlikely to succeed, see, e.g., Heckman v. State of Wash., No. C04- 2 5447RJB, 2005 WL 1719869, at *8 (W.D. Wash. July 25, 2005) (“[S]overeign immunity 3 bars a RICO claim against the United States.”), aff’d sub nom. Heckman v. Washington, 4 180 F. App’x 696 (9th Cir. 2006); McMillan v. Dep’t of Interior, 907 F. Supp. 322, 326 5 (D. Nev. 1995) (“No RICO statute waives the sovereign immunity of the United States or 6 its agencies.”), aff’d sub nom. McMillan v. U.S. Dep’t of Interior, 87 F.3d 1320 (9th Cir. 7 1996). Because Mr. Carroll has not demonstrated that he is unable to afford counsel or 8 that his complaint is likely to succeed on its merits, the court must conclude that 9 exceptional circumstances do not warrant the appointment of counsel. See Wilborn, 789 10 F.2d at 1331. 11 Finally, the court doubts that it will be able to find an attorney to take Mr. 12 Carroll’s case. Although the court can, in certain circumstances, request that an attorney 13 represent a pro se litigant, it cannot force a lawyer to take a case. See 28 U.S.C. 14 § 1915(e); see also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307 15 (1989) (noting that courts may “ask but not compel lawyers to represent indigent 16 litigants”). The court has adopted a plan for recruiting counsel to represent indigent 17 litigants pro bono, but only plaintiffs in “civil rights actions” are eligible. See W.D. 18 Wash. General Order 16-20 (Dec. 8, 2020), https://www.wawd.uscourts.gov/ 19 sites/wawd/files/GO16-20AmendedProBonoPlan.pdf. An action to establish the 20 President’s RICO liability for unspecified environmental violations likely does not 21 qualify as a civil rights action. Even if it did, Mr. Carroll reports that he has contacted 22 approximately ten attorneys over the past month or so, none of whom was willing to take 1 his case. (See Mot. at 2.) Thus, the court doubts that an attorney would volunteer to take 2 Mr. Carroll’s case for free. 3 In sum, Mr. Carroll has not demonstrated that this case involves the type of 4 exceptional circumstances that warrant appointment of counsel by the court. For the 5 same reason, the court determines that Mr. Carroll’s request for court-appointed counsel 6 should not be passed on to the pro bono screening committee for further review. See 7 W.D. Wash. General Order No. 16-20, Section 3(c). Accordingly, the court DENIES Mr. 8 Carroll’s motion for appointment of counsel (Dkt. # 2). 9 Dated this 3rd day of June, 2022. 10 A 11 JAMES L. ROBART 12 United States District Judge 13 14 15 16 17 18 19 20 21 22