Bell v. United States Department of Interior et al

Filing 57

ORDER signed by Magistrate Judge John F. Moulds on 11/1/12 denying 55 Motion to Appoint Counsel; The November 15, 2012 hearing on this matter is vacated. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YOLANDA Y. BELL,
Plaintiff,

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No. CIV 2:12-cv-1414-GEB-JFM (PS)

vs.
UNITED STATES DEP’T OF INTERIOR,
KENNETH SALAZAR, Secretary,

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Defendant.

ORDER

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Pending before this court is plaintiff’s motion to appoint counsel. Plaintiff, who
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has paid the filing fee in this action and is not proceeding in forma pauperis, seeks appointment
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of counsel on the grounds that she is indigent, she is unable to work due to her medical
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condition, she has exercised reasonable diligence in attempting to obtain assistance of counsel,
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she is the primary caretaker for her disabled sister, and she lacks legal knowledge to litigate this
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case. Plaintiff has set this matter for hearing. The court has determined that the matter shall be
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submitted upon the record and briefs on file and accordingly, the date for hearing of this matter
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shall be vacated. Local Rule 230.
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Although plaintiff’s request is understandable under the circumstances, the
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Constitution provides no right to appointment of counsel in a civil case unless an indigent
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litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social

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Services, 452 U.S. 18, 25 (1981). Also, under 28 U.S.C. § 1915(e)(1), a district court has the

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discretion to appoint counsel to represent an “indigent civil litigant,” but only under “exceptional

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circumstances,” the determination of which requires an evaluation of both (1) the likelihood of

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success on the merits, and (2) the ability of the plaintiff to articulate her claims pro se in light of

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the complexity of the legal issues involved. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.

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1980).

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Here, plaintiff is not facing a loss of liberty, so Lassiter is inapplicable. In
addition, she has not yet demonstrated that she is indigent under 28 U.S.C. § 1915(e)(1).

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Furthermore, at this point in the proceedings, the undersigned is unable to make a determination

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that plaintiff is likely to succeed on the merits of her claims for race discrimination, retaliation,

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and hostile work environment. Lastly, on the record before the court, plaintiff’s claims are not

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complex and plaintiff has thus far been able to articulate her claims pro se. Accordingly, the

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undersigned will deny plaintiff’s request for the appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The November 15, 2012 hearing on this matter is vacated; and

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2. Plaintiff’s motion for appointment of counsel is denied without prejudice.

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DATED: November 1, 2012.

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