Lam et al v. Newsom et al

Filing 93

ORDER by Judge Hamilton denying 92 Motion for Reconsideration (pjhlc2, COURT STAFF) (Filed on 9/19/2014) (Additional attachment(s) added on 9/19/2014: # 1 Certificate/Proof of Service) (nahS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFRED LAM, et al.,

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Plaintiffs,
v.

No. C 10-4641 PJH
ORDER DENYING MOTION FOR
RECONSIDERATION

CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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On September 17, 2014, plaintiffs filed a “motion for reconsideration of appointing

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pro bono counsels to assist plaintiffs’ ongoing litigation process.” As an initial matter, the

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court will construe this motion as a renewed motion for appointment of pro bono counsel,

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as the court denied, without prejudice, plaintiffs’ previous motion for appointment of pro

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bono counsel on July 25, 2014.

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The court’s previous order noted that plaintiff’s motion was “deficient in several

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respects,” and took the “opportunity to advise plaintiffs as to what they need to address in

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any renewed motion for appointment of counsel.” See Dkt. 83. The court then noted that

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“there is no constitutional right to appointed counsel for employment discrimination claims.”

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Id. at 2. However, the court does have discretion to appoint volunteer counsel in certain

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limited circumstances.

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In Title VII cases, the court must assess three factors: (1) the plaintiff’s financial

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resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the

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plaintiff’s claim has merit. Bradshaw v. Zoological Soc. of San Diego, 662 F.3d 1301, 1318

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(9th Cir. 1981). In section 1983 cases, the court may ask counsel to represent an indigent

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client (who is proceeding in forma pauperis) only in “exceptional circumstances,” the

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determination of which requires an evaluation of both (1) the likelihood of success on the

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

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complexity of the legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991).

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In its previous order, the court noted that the standards were not identical, but that

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each required the indigence of the plaintiffs. Because plaintiffs’ motion did not provide the

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court with information regarding the financial resources of each plaintiff, and because none

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of the plaintiffs had filed IFP applications but had instead paid the filing fee, the court

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advised plaintiffs that “any renewed motion must be accompanied by a declaration from

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each plaintiff who seeks pro bono representation, setting forth the information requested in

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the IFP applications available on the court’s website and from the Clerk’s Office.” Dkt. 83
at 3. Plaintiffs’ renewed motion states only that plaintiff Chen receives approximately

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For the Northern District of California

United States District Court

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$1100 per month in pension income, and provides no specific financial information

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regarding plaintiffs Lam and Leiato, except to say that Lam was told by the Legal Help

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Center that neither he nor Leiato qualified for pro bono services as their incomes were too

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high. This showing falls far short of the detailed financial information required by the IFP

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application. As a result, the court cannot properly assess the financial resources of the

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plaintiffs, and thus, cannot make a determination as to whether appointment of counsel is

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warranted under either Bradshaw or Terrell. On that basis alone, plaintiffs’ motion is

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DENIED.

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In addition, under either Bradshaw or Terrell, the court is required to assess the

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merits of plaintiffs’ legal claims. In its previous order, the court noted that plaintiffs had not

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“explain[ed] how this case would likely be decided differently than their first case, Lam v.

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CCSF, C 08-4702, in which the court granted summary judgment for defendants based on

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similar claims, which judgment was affirmed by the Ninth Circuit.” Dkt. 83 at 3-4. The court

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advised plaintiffs that the “declaration in support of any renewed motion must address this

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issue.” Id. at 4. In the present motion, plaintiffs state only that they “had good faith to

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believe that the related case #08-4702 would be reversed by Ninth Circuit Court of Appeal,

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based on, but not limited to the credibility issues of intentional concealed, wrongful or false

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information from their declaration or deposition provided by individual defendants and
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disclosed or non-disclosed witnesses.” Dkt. 92 at 3. While this explains that plaintiffs

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believed that the grant of summary judgment in their previous case would be reversed, it

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does not “explain how this case would likely be decided differently than their first case,” as

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the court required. Thus, the court cannot assess whether plaintiffs’ claims in the present

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case have merit, which provides an independent basis for DENYING plaintiffs’ renewed

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motion.

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IT IS SO ORDERED.

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Dated: September 19, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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