Apostol v. Castro Valley Unified School District, et al

Filing 8

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL. Signed by Judge Jeffrey S. White on 7/17/09. (jjo, COURT STAFF) (Filed on 7/21/2009)

1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROMEO V. APOSTOL, Plaintiff, v. CASTRO VALLEY UNIFIED SCHOOL DISTRICT, et al., Defendants. / ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL No. C 09-02676 JSW

United States District Court

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For the Northern District of California

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Now before the Court is Plaintiff's application to proceed in forma pauperis and request for appointment of counsel submitted filed on June 5, 2009. To institute any civil action, suit or proceeding in federal court, the clerk of the district court requires the parties instituting such action to pay a filing fee of $350.00. See 28 U.S.C. § 1914(a). However, the Court can authorize the commencement of any suit without prepayment of fees. See 28 U.S.C. § 1915(a). The plaintiff may file without prepayment of fees if the party submits an affidavit of poverty. Id. The court "may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Id. at § 1915(d). The Court finds that Plaintiff's claim of poverty is unconvincing. Plaintiff maintains receives $2200 a month, owns a home and owns a car. On this basis, the application to proceed in forma pauperis is DENIED. There is no constitutional right to counsel in a civil case, unless an indigent litigant may lose his physical liberty if he loses the litigation, a situation not presented by this case. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520,

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1525 (9th Cir. 1997) (no constitutional right to counsel in Section 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc.) However, pursuant to 28 U.S.C. § 1915(e)(1), a "court may request an attorney to represent any person unable to afford counsel." This Court has discretion in considering whether to appoint counsel under section 1915(e)(1) and, in general, that discretion should be exercised only in exceptional circumstances. Rand, 113 F.3d at 1525. In making that determination, the Court considers the likelihood of a plaintiff's success on the merits and the plaintiff's ability to articulate his or her claims in light of the complexity of the legal issues involved. Id.; see also Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). While this Order should not be construed as a prejudgment of Plaintiff's claims, at this time the Court declines to exercise its discretion to appoint counsel as this case does not appear to present an exceptional circumstance meriting appointment of counsel. Accordingly, Plaintiff's request for appointment of counsel is DENIED. In addition, without making any endorsement in this regard, Plaintiff is advised that the San Francisco Bar Association operates a lawyer referral service which may be helpful in securing pro bono counsel. Moreover, Plaintiff may wish to seek assistance from the Legal Help Center, located on the 15th Floor of the Courthouse, Room 2796, where Plaintiff may sign up for a free appointment with an attorney who may be able to provide basic legal help, but not legal representation. IT IS SO ORDERED.

United States District Court

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For the Northern District of California

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Dated: July 17, 2009

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 9 10 ROMEO V APOSTOL, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-02676 JSW CERTIFICATE OF SERVICE

CASTRO VALLEY UNIFIED SCHOOL DISTRICT et al, Defendant. /

United States District Court

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For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 21, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Romeo V. Apostol 10499 S. Manthey Road Lathrop, CA 95330 Dated: July 21, 2009 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk