Ramirez et al v. County of El Dorado et al
Filing
38
ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/23/2019 DENYING 31 Motion to Appoint Counsel. (Zignago, K.)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
12
WILLIAM RAMIREZ and STACEY
RAMIREZ,
Plaintiffs,
13
ORDER
v.
14
15
No. 2:18-cv-00632-KJM-CKD PS
COUNTY OF EL DORADO, et al.,
Defendants.
16
17
18
I.
Introduction
Before the court is plaintiffs’ October 1, 2019 motion to appoint counsel. (ECF No. 31.)
19
20
On October 8, 2019, the court took the motion under submission on the briefing without oral
21
argument, pursuant to Local Rule 230(g). (ECF No. 34.) On October 16, 2019, defendants filed
22
an opposition (ECF No. 36), and on October 22, 2019 plaintiffs filed their reply (ECF No. 37).
23
II.
24
Legal Standard
Any successful application for appointment of counsel must comply with criteria set forth
25
in Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir. 1981). Before
26
appointing counsel to plaintiffs, the court must consider (1) plaintiffs’ financial resources, (2) the
27
efforts already made by plaintiffs to secure counsel, and (3) plaintiffs’ likelihood of success on
28
the merits. Id. at 1318. Appointment of counsel is not a matter of right. See Ivey v. Bd. of
1
1
Regents, 673 F. 2d 266 (9th Cir. 1982). Moreover, “counsel may be designated under section
2
1915(d) only in ‘exceptional circumstances’. . . [which] requires an evaluation of both ‘the
3
likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se
4
in light of the complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328,
5
1331 (9th Cir. 1986) (internal citations omitted).
6
III.
7
8
Analysis
Regarding the Bradshaw factors, because plaintiffs are proceeding in forma pauperis, the
first factor, which relates to their financial condition, is a fortiori resolved in their favor.
9
As to the second Bradshaw factor, plaintiffs do not provide the efforts they made to obtain
10
counsel, if any. Plaintiffs only state that “they have tried to contact numerous attorneys” and
11
“[a]ll of them state that the lack of ability to pay a retainer is the reason for them not taking on the
12
Plaintiffs’ case.” (ECF No. 31 at 1–2.) However, plaintiffs provided no evidence to support this
13
conclusory statement. Plaintiffs should make reasonable efforts to meet with attorneys, and
14
provide a declaration that complies with 28 U.S.C. § 1746 that documents their efforts to retain
15
them and why they refused to take their case. In other words, plaintiffs must provide some form
16
of evidence supporting their efforts to obtain counsel for the court to consider their motion. This
17
factor therefore weighs against granting plaintiffs’ motion to appoint counsel.
18
Nonetheless, even if the court were to consider the remaining factors, plaintiffs’ motion
19
fails. As to the third Bradshaw factor evaluating plaintiffs’ likelihood of success on the merits,
20
plaintiffs argue that Magistrate Judge Gregory G. Hollows stated they have a “credible case” and
21
have a “colorable chance of success.” (ECF No. 31 at 3.) However, plaintiffs merely continue to
22
rely on the allegations in their complaint which at best state the bare elements of a prima facie
23
case, and no more. Plaintiffs offer no further argument “to the effect that [they have] any
24
requisite likelihood of success.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
25
withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir. 1998).1 Although plaintiffs claim
26
27
28
See Rand v. Rowland, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (“Part II.C. of the panel opinion,
concerning appointment of counsel, is not affected by our en banc review and is not
withdrawn.”).
2
1
1
some discovery difficulties, including having to appear for their depositions, this does not
2
establish the likelihood of success on the merits of their case. At this juncture, following the
3
close of all fact discovery except plaintiffs’ depositions, plaintiffs should be able to identify the
4
source(s) of evidence that they believe will allow them to prevail. This factor also weighs against
5
granting plaintiffs’ motion.
6
Turning to the Wilborn standard, plaintiffs are incorrect that they have “jumped the
7
‘exceptional circumstances’ hurdle” on the ground that their application to proceed in forma
8
pauperis was granted. (See ECF No. 37 at 2.) The “exceptional circumstances” standard is met
9
through evaluation of the likelihood of success on the merits and the ability of plaintiffs to
10
articulate their claims in light of the complexity of the legal issues involved. Wilborn, 789 F.2d
11
at 1331 (quoting Weygtandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). As noted above,
12
plaintiffs have not satisfied the requirement that they are likely to succeed on the merits.
13
Regarding the complexity of the legal issues involved, that plaintiffs must appear for their
14
depositions is not sufficient grounds to meet the exceptional circumstances threshold or establish
15
that this case is complex. See Wilborn, 789 F.2d at 1331 (explaining that “[a]lthough discovery
16
was essential . . ., the need for such discovery does not necessarily qualify the issues involved as
17
‘complex’”). Indeed, if that were the case, every pro se plaintiff would be entitled to have
18
counsel appointed given that most litigation cases involve depositions. Id. (“If all that was
19
required to establish successfully the complexity of the relevant issues was a demonstration of the
20
need for development of further facts, practically all cases would involve complex legal issues.”);
21
see also Thornton v. Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D.
22
Cal. Jan. 11, 2011) (explaining that “[f]actual disputes and anticipated cross-examination of
23
witnesses do not indicate the presence of complex legal issues warranting a finding of exceptional
24
circumstances” (citing Rand, 113 F.3d at 1525)). As noted by Judge Hollows,
25
26
27
28
The concerns plaintiffs have raised may be mitigated by the
acquisition or review of one of the many federal practice guides
regarding procedures before trial available on the market for
purchase or available for study in the State Court Law Library or
the Law Library available in this courthouse which can be entered
at the lobby level of the building. There is a librarian on duty in the
court library who can assist them in locating the materials they
3
1
2
require.
(ECF No. 20 at 2–3.)
Finally, plaintiffs have demonstrated that they are more than capable of articulating their
3
4
claims and appear to be prosecuting this matter adequately on their own. In that regard, the court
5
notes that plaintiffs have worked in the legal field for at least ten years and are therefore even
6
more capable of litigating their case pro se compared to other pro se plaintiffs. See About Modoc
7
Legal Services, MODOC LEGAL SERVICES, https://modoclegal.com/index.php/about-us (last visited
8
Oct. 23, 2019) (stating that Modoc Legal Services is “[r]un by William and Stacey Ramirez” and
9
has “over a decade of experience in the legal field”).
In sum, plaintiffs have not established their efforts to obtain counsel, a likelihood of
10
11
success on the merits, that their case is complex, or that they are unable to articulate their claims.
12
IV.
Conclusion
For these reasons, plaintiffs’ motion to appoint counsel (ECF No. 31) is DENIED without
13
14
prejudice.2
15
Dated: October 23, 2019
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
15 ramirez632.counsel
21
22
23
24
2
25
26
27
28
The court set a deadline of October 30, 2019 for the parties to complete plaintiffs’ depositions.
This deadline remains in effect notwithstanding this motion or any other motion plaintiffs file. In
other words, plaintiffs must comply with this deadline and complete their depositions by October
30, 2019 or be subject to any and all sanctions available. See Local Rule 110 (“Failure of counsel
or of a party to comply with these Rules or with any order of the Court may be grounds for
imposition by the Court of any and all sanctions authorized by statute or Rule or within the
inherent power of the Court.”).
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?