Crawford, Sr. v. Moore

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 2/23/15 ORDERING that plaintiff's 8 motion for the appointment of counsel is DENIED without prejudice. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REV. WESLEY CRAWFORD SR.,

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Plaintiff,

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No. 2:14-CV-2725 JAM AC (PS)

v.

ORDER

LISA M. MOORE,

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Defendant.

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Plaintiff is proceeding on a complaint that alleges violations of 42 U.S.C. §§ 1981, 1983,

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2000a, et seq. (Title II of the Civil Rights Act) and 2000e, et seq. (Title VII of the Civil Rights

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Act). Pending before the court is plaintiff’s request that the court appoint him counsel.1
I. SECTION 1983

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District courts may not require counsel to represent indigent litigants in § 1983 cases.

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Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However, where willing counsel

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is available, the district court “may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128 (2005).

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Defendant has also filed a motion to dismiss this lawsuit, but plaintiff has until March 25, 2015
to respond to that motion.

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The district court may appoint such counsel where “exceptional circumstances” exist.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing

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Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a

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court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner

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to articulate his claims pro se in light of the complexity of the legal issues involved.’” Palmer,

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560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances

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common to most pro se litigants, such as lack of formal legal education, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel. See,

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e.g., Guess v. Lopez, 2014 WL 1883875 at *5 (E.D. Cal. 2014) (Claire, M.J.). Having considered

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the factors under Palmer, the court finds that plaintiff has failed to meet his burden of

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demonstrating exceptional circumstances warranting the appointment of counsel at this time.

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II. TITLE II AND VII

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“Upon application by the complainant and in such circumstances as the court may deem

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just, the court may appoint an attorney for such complainant . . ..” 42 U.S.C.A. § 2000e-5(f)(1).2

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In determining whether to appoint counsel, the court considers: (1) plaintiff's financial resources;

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(2) the efforts made by the plaintiff to secure counsel on his own; and (3) the merits of plaintiff's

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claim. Brown v. Continental Can Co., 765 F.2d 810, 814 (9th Cir. 1985).

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Plaintiff has submitted a 22-page request for counsel, but he has not addressed whether he

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has the financial resources to hire an attorney, nor what efforts he has made to secure counsel –

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including pro bono counsel – on his own. As for the merits of his Title II (discrimination in

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public accommodations) and VII (discrimination in employment) claims, plaintiff’s request for

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counsel tends to show that his claims have no merit under those provisions, as the request

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indicates that whatever injury plaintiff has suffered is the result of his whistle-blower activity, and

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not because of his race or other classification protected by Title II or VII. Plaintiff has thus failed

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to show that the court should appoint counsel pursuant to Title II or VII.

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Title II of the Civil Rights Act contains an identical provision. See 42 U.S.C. § 2000a-3(a).
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III. CONCLUSION
The court notes that plaintiff filed his request for counsel soon after defendant moved to

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dismiss the case. Plaintiff is cautioned that his request for counsel does not serve as his response

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to the dismissal motion, nor does it relieve him of his obligation to file a response to the dismissal

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motion. His opposition, or statement of non-opposition, to that motion (ECF No. 7) must be

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served and filed no later than March 25, 2015.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 8), is DENIED without prejudice.

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DATED: February 23, 2015

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