Howard v. Farmers Insurance Company Inc et al
Filing
104
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL by Judge Dean D. Pregerson (lc)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DERRICK HOWARD,
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Plaintiff,
v.
FARMERS INSURANCE COMPANY,
INC.; MID-CENTURY INSURANCE
COMPANY; et al.
Defendants.
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Case No. CV 12-01068 DDP (JCx)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[Dkt. No. 103]
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Presently before the Court is Plaintiff’s Motion for
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Appointment of Counsel.
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United States Penitentiary Coleman II in Florida; the claims of his
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complaint arise from an insurance contract relating to a rental
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property in Missouri that Plaintiff owns or owned.
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In other words, it is a private civil dispute, not a criminal
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matter, a civil rights claim, or even a civil dispute with the
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Bureau of Prisons.
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(Dkt. No. 103.)
Plaintiff is an inmate at
(Dkt. No. 3.)
Plaintiff nonetheless asks that the Court request an attorney
to represent him under 28 U.S.C. § 1915(e)(1).
That section allows
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the court “to request volunteer counsel for indigent plaintiffs,”
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although “the court has no power to make a mandatory appointment.”
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Zachow v. City of Portland, Or., No. 3:14-CV-00140-JE, 2014 WL
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1236371, at *3 (D. Or. Mar. 25, 2014).
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appointment of volunteer counsel “would assist the court as well as
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all parties involved,” because, as an inmate, he is unable to
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conduct discovery, depose witnesses, or timely respond to
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pleadings, discovery, or court orders.
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Plaintiff argues that
(Motion at 3.)
Plaintiff is correct that his status as an inmate hinders the
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timely and orderly resolution of this litigation.
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No. 90 (order modifying scheduling order because discovery is
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delayed by being sent back and forth through the prison mail
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system).)
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understandable.
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request counsel under § 1915(e)(1).
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(See, e.g., Dkt.
The parties’ frustration with this fact is
However, there are several good reasons not to
First, request of counsel in private, commercial lawsuits is
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vanishingly rare.
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one case in which a private plaintiff was appointed counsel in a
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suit against a non-government-affiliated private defendant.
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that case, the plaintiff had brought a claim for conversion against
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his former attorney, who had allegedly sold the plaintiff’s car
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without his permission while the plaintiff was in prison.
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v. Nadler, 452 F.2d 754 (8th Cir. 1971).
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attorney’s misconduct against his client implicates due process and
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other constitutional guarantees, that case may be unique and
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limited to its facts.
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After diligent search, the Court has found only
In
Peterson
As a criminal defense
In a case much like this one, on the other hand, the Western
District of Wisconsin noted:
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I believe that the court of appeals did not intend district
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courts to evaluate the need for counsel in personal injury
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lawsuits in the same manner as in federal question litigation.
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The primary reason is that personal injury claims have an
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economic value that makes meritorious claims attractive to
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lawyers without any need for judicial intervention . . . .
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might be somewhat more difficult for a prisoner to find legal
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representation because he is not able to make a personal visit
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to the lawyer's office, but there is no reason to believe that
It
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any prisoner with a meritorious personal injury claim could
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not find a capable lawyer willing to provide representation.
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If counsel refuse to take the claim because it appears
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unlikely to succeed . . . there is no reason for the court to
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intervene to require a lawyer to proceed with prosecution of
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the claim.
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Lipscomb v. Gen. Foods Corp., 615 F. Supp. 254, 257 (W.D. Wis.
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1985).
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against an insurer under a statute that provides for attorney’s
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fees, Mo. Ann. Stat. § 375.296, it seems likely that a plaintiff
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with a meritorious case could reach some sort of contingency
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agreement with a private attorney.
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Similarly, in a suit like this one, which involves claims
Even assuming § 1915(e)(1) applies to lawsuits between private
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parties, it might be reasonable in such cases to demand that the
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indigent litigant make at least some attempt to secure private
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counsel before asking the court to appoint counsel.
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Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013) (requiring
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an indigent litigant to “make reasonable efforts at finding counsel
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himself”).
See, e.g.,
Plaintiff has not shown that he has attempted to obtain
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private counsel in this case or argued that it would be impractical
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for him to do so.
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Additionally, when a court asks an attorney to represent an
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indigent party, what gives heft to that request is not that it is
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mandatory (it is not), but that attorneys have a non-binding moral
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and professional obligation to provide the indigent with some
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access to legal services.
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for S. Dist. of Iowa, 490 U.S. 296, 310-11 (1989) (Kennedy, J.,
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concurring) (“Lawyers, like all those who practice a profession,
See, e.g., Mallard v. U.S. Dist. Court
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have obligations to their calling which exceed their obligations to
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the State . . . .
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indigent is one of those traditional obligations.”).
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bono representation is a limited resource, the Court should lean on
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that obligation primarily in cases where the gravest harms to
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justice are likely to occur, such as in civil rights claims.
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Moreover, appointment of counsel under § 1915(e)(1) “is
Accepting a court's request to represent the
Because pro
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granted only in exceptional circumstances,” and requires an
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evaluation of “at least” the likelihood of success on the merits
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and the indigent plaintiff's “ability to articulate his claims in
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light of the complexity of the legal issues involved.”
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Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (internal
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quotation marks omitted).
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on the merits is hard to estimate at this stage, if he is likely to
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succeed, that suggests, as noted above, that he could probably find
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a private attorney to take the case for him.
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prong, Plaintiff has clearly and capably articulated his claims,
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which do not seem legally complex, in his Complaint.
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motion is based on the practical hurdles he faces in this
Agyeman v.
While Plaintiff’s likelihood of success
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As to the other
Plaintiff’s
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litigation, not on an inability to understand and argue the law.
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The Court does not find that “exceptional circumstances” are
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present here.
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The motion for request of counsel is DENIED.
However,
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recognizing the unusual circumstances under which the parties are
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forced to litigate, the Court is willing to work flexibly with them
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on scheduling and other issues that are impacted by Plaintiff’s
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incarcerated status.
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IT IS SO ORDERED.
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Dated: April 10, 2015
DEAN D. PREGERSON
United States District Judge
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