G.I.S.E. v. City of Chico, et al

Filing 31

ORDER signed by District Judge Troy L. Nunley on 9/1/2020 DENYING 23 Motion to Appoint Counsel. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G.I.S.E., by and through his guardian ad
litem, Eddie Sanchez,

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No. 2:17-cv-00075-TLN-DMC

Plaintiff,

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ORDER
v.

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CITY OF CHICO, CHICO POLICE
DEPARTMENT, MARK BASS,

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Defendants.

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This matter is before the Court on Plaintiff G.I.S.E.’s motion to appoint counsel. (ECF

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No. 23.) Defendants City of Chico, Chico Police Department, and Mark Bass oppose the motion.

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(ECF No. 25.) For the reasons set forth below, the motion is DENIED.

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G.I.S.E. is a minor proceeding by and through his guardian ad litem, Eddie Sanchez.1

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Plaintiff initiated this action through counsel, but has not had counsel since March 19, 2018,

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when this Court granted former-counsel’s motion to withdraw. (ECF No. 18). Thereafter,

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Plaintiff was granted two extensions of time to find new counsel, each time the Court noting a

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minor may not proceed pro se and may not proceed through a non-attorney guardian ad litem.

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(ECF Nos. 20, 21.)

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It appears Eddie Sanchez has not officially been appointed as the minor’s guardian ad
litem in this case.
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Plaintiff’s motion indicates Mr. Sanchez has attempted to retain counsel on numerous

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occasions but has been unable to secure an attorney to take the case. Mr. Sanchez states he is

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unable to pay an attorney but is willing to compensate one by way of a contingency fee if Plaintiff

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is successful. He also provides that he is unable to read or write and has been assisted by a friend

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in this case. Plaintiff asks the court to appoint an attorney and set a contingency fee percentage

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that the attorney will be paid. Defendants oppose the motion, primarily arguing there is no

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statutory or discretionary authority for the Court to appoint counsel for a minor in a civil matter.

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As Plaintiff is aware, Mr. Sanchez cannot pursue this lawsuit on behalf of G.I.S.E.

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Indeed, the Ninth Circuit Court of Appeals has unequivocally held that “a parent or guardian

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cannot bring an action on behalf of a minor child without retaining a lawyer.” Johns v. County of San

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Diego, 114 F.3d 874, 877 (9th Cir. 1997). And Defendant is correct that there is no general right to

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counsel for civil litigants. Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981). Under 28 U.S.C.

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§ 1915(e), the Court may “request” that counsel represent a civil litigant who is proceeding in forma

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pauperis. But this does not give district courts the power to make “coercive appointments of

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counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). Moreover, a court may

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ask counsel to represent an indigent litigant under § 1915 only in “exceptional circumstances.”

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Determining whether a case involves exceptional circumstances requires an evaluation of (1) the

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likelihood of plaintiff’s success and (2) plaintiff’s ability to articulate his claims in light of the

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complexity of the legal issues involved. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th

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Cir. 2004).

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As an initial matter, Plaintiff is not proceeding in forma pauperis in this action. Such status

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requires an application to proceed as such, and a court order finding the plaintiff meets the financial

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constraints to constitute indigency. See 28 U.S.C. § 1915. Even if he were, it is not clear to the Court

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that “exceptional circumstances” exist here such that the Court could or should request counsel for

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Plaintiff under § 1915. As the Court is unaware of any authority requiring or even permitting

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appointment of counsel in this matter, Plaintiff’s motion (ECF No. 23) is DENIED.

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The Court is sympathetic to Plaintiff’s predicament. But the Ninth Circuit has held that if a
lawyer is not secured to bring suit on a minor's behalf, the complaint should be dismissed without

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prejudice so the minor may bring the action upon reaching the age of majority. Johns, 114 F.3d at

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878.

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Because it appears Mr. Sanchez has been attempting to find a lawyer for his grandson,

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however, Plaintiff shall have one final extension of time to retain counsel in this matter. Not later

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than sixty days from the date of electronic filing of this Order, new counsel shall file a notice of

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association on the docket. Plaintiff is advised that a local bar association may be able to assist in

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finding counsel under a contingency fee arrangement or, possibly, pro bono. If Plaintiff is unable to

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retain counsel, this matter will be dismissed without prejudice and without further notice to the

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parties. See Johns, 114 F.3d at 878 n.2 (holding minor plaintiff’s claims should be dismissed

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without prejudice so the plaintiff may bring them when he reaches the age of majority, and noting

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that generally state statutes of limitations “often toll causes of action for minors” but expressing

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no opinion on which causes of action, if any, were tolled in that particular case).

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IT IS SO ORDERED.
DATED: September 1, 2020

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Troy L. Nunley
United States District Judge

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