Ma v. Densmore

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT

7 WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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ROLAND MA,

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Plaintiff,

10 Case No. 2:20-cv-1355-RAJ

v.

11 ORDER

ESTHER PARK DENSMORE and

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WASHINGTON CARE SERVICES,

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Defendants,

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v.

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WALDEN UNIVERSITY, LLC.,

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Third-Party Defendant.

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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

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“HIPAA-compliance communication app.” Id. at 1. Ms. Densmore did so “based on an

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accusation” made by an employee that Mr. Ma “ha[d] been harassing [the employee] via

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text” message. Id. The complaint alleges that Mr. Ma was afforded “no due process for

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this accusation at all.” Id. Later, on September 12, 2020, Ms. Densmore “permanently

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suspended” Mr. Ma from entering “the building” and from completing the remaining

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weeks of his internship. Id. at 2. What is more, the complaint alleges that Defendant

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Walden University LLC (“Walden University” or “University”) further violated his rights

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by “fail[ing] to advocate for [him]” and failing to “remind Ms. Densmore” of his “rights

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to due process pursuant to the Fifth and Fourteenth Amendments to the United States

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Constitution, and the Constitution of the State of Washington, Article I, Section 3, 5 and

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9, for personal rights.” Id.

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iii. WCS Defendants’ Motion to Dismiss (Dkt. # 59)

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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

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addresses each in the order they were filed.

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i. Motion for Reconsideration (Dkt. # 38)

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Motions for reconsideration are disfavored under the Local Rules for the Western

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District of Washington. Local Rules W.D. Wash. LCR 7(h)(1). “[I]n the absence of a

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showing of manifest error in the prior ruling or a showing of new facts or legal authority

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which could not have been brought to [the Court’s] attention earlier with reasonable

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diligence,” such motions will ordinarily be denied. Id. “A motion for reconsideration

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‘may not be used to raise arguments or present evidence for the first time when they

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could reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc.

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v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original)

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(quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).

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Months ago, the Court denied Mr. Ma’s first motion for TRO. Dkt. # 36. The

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Court denied that motion for the same reasons it grants WCS Defendants’ motion to

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dismiss here: Mr. Ma failed to identify a state actor. Id. Mr. Ma later filed a motion for

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reconsideration. Dkt. # 38. He claims that “new evidence[]” has surfaced after he moved

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for a TRO. Id. at 1; Dkt. ## 38-1, 38-2. He also contests, without any supporting

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evidence, some of the Court’s factual findings, id. at 2-3, that were not material to the

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Court’s ultimate conclusion that Mr. Ma failed to identify a state actor.

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The Court has reviewed Mr. Ma’s motion and his “new evidence” and denies

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reconsideration. First, Mr. Ma does not explain why the evidence could not have been

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brought to the Court’s attention earlier. Second, and more importantly, Mr. Ma’s

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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