Wagner v. Cryer et al

Filing 17

ORDER by Judge Yvonne Gonzalez Rogers denying 3 Motion to deliver Plaintiff's pleadings to Defendant; denying without prejudice 4 Motion to Appoint Counsel ; denying as unnecessary 15 Motion for Leave to File Amended Complaint; granting 2 Motion for Leave to Proceed in forma pauperis and ORDERING SERVICE; Continuing Case Management Conference to 6/2/2014 at 2:00pm. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 3/3/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL L. WAGNER,

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Plaintiff,

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United States District Court
Northern District of California

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v.
STACEY CRYER, in her Official Capacity as
Director, County of Mendocino County;
HEALTH AND HUMAN SERVICES,
unknown Named Director of County of San
Francisco,

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Defendants.

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Case No.: 13-CV-5167 YGR
ORDER:
1) GRANTING MOTION TO PROCEED IN
FORMA PAUPERIS AND ORDERING
SERVICE;
2) DENYING AS MOOT MOTION FOR COURT
TO DELIVER PLAINTIFF'S PLEADINGS TO
DEFENDANT;
3) DENYING WITHOUT PREJUDICE MOTION
TO APPOINT COUNSEL
4) DENYING AS UNNECESSARY MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT;
AND

5) CONTINUING CASE MANAGEMENT
CONFERENCE

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Pro se plaintiff Michael L. Wagner brings suit under 42 U.S.C. section 1983 for

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"harassment for improper motive" relating to the provision of his food stamp benefits by the

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Mendocino and San Francisco county governments. (Dkt. No. 1 ("Complaint").) Presently before

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the Court are four motions filed by Plaintiff: (1) a motion for leave to proceed in forma pauperis

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(Dkt. No. 2); (2) a motion for the Court to deliver Plaintiff's pleadings to the Defendants (Dkt. No.

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3); (3) a motion to appoint counsel (Dkt. No. 4); and (4) a motion for leave to file an amended

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complaint (Dkt. No. 15). An initial case management conference has been set for March 3, 2014,

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but no defendant has yet appeared in the action.

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I.

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MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
When presented with an application to proceed in forma pauperis, a court must first

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determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a).

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See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require

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an applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797

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F.2d 853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S.

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331, 339 (1948)). Having reviewed Mr. Wagner's application, the Court is satisfied that he has

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demonstrated that he meets the economic eligibility requirement and, accordingly, GRANTS his

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application to proceed in forma pauperis.
It is further ORDERED that the Clerk issue summons, and it is further ORDERED that the

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U.S. Marshal for the Northern District of California serve, without prepayment of fees, a copy of

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the complaint, any amendments, scheduling orders, attachments, plaintiff's affidavit and this Order

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upon the Defendants.

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II.

The motion requesting service of court documents on Defendants (Dkt. No. 3) is DENIED AS

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United States District Court
Northern District of California

MOTION FOR COURT TO DELIVER PLAINTIFF'S PLEADINGS

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MOOT since Plaintiff has been granted in forma pauperis status. Accordingly, service of process

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will be executed on Plaintiff’s behalf on all locatable Defendants by the United States Marshall.

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III.

MOTION FOR APPOINTMENT OF COUNSEL

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In contrast to criminal proceedings, there generally is no constitutional right to counsel in

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civil actions. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986) (“There is

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normally … no constitutional right to counsel in a civil case.”). In proceedings in forma pauperis,

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the Court has the statutory power only to “request an attorney to represent any person unable to

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afford counsel.” 28 U.S.C. § 1915(e)(1). This decision of whether to request counsel is within the

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discretion of the district court and is “granted only in exceptional circumstances.” See Agyeman v.

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Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d

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1221, 1236 (9th Cir. 1984)). Deciding whether “exceptional circumstances” exist requires an

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evaluation of the likelihood of plaintiff’s success on the merits as well as the ability of the plaintiff

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to articulate his or her claims pro se in light of the complexity of the legal issues. Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citing Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983)).

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At this stage of the proceedings, the Court is unable to determine whether the exceptional
circumstances required for requesting counsel are present here. Accordingly, Plaintiff’s Motion for

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Appointment of Counsel is DENIED WITHOUT PREJUDICE. The Court may reconsider on its own

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motion and request appointment of counsel later in the proceedings.
The Court advises Plaintiff that a Handbook for Pro Se Litigants, which contains helpful

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information about proceeding without an attorney, is available in the Clerk’s office or through the

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Court’s website, http://cand.uscourts.gov. The Court also advises Plaintiff that additional

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assistance may be available by making an appointment with the Legal Help Center. There is no fee

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for this service. Please visit the Court’s website or call the phone numbers listed below for current

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office hours, forms and policies.
To make an appointment with the Legal Help Center in Oakland, Plaintiff may visit the

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Oakland Courthouse, located 1301 Clay Street, Room 470S, Oakland, or call 415/782-8982.

United States District Court
Northern District of California

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To make an appointment with the Legal Help Center in San Francisco, Plaintiff may visit

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the San Francisco Courthouse, located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San

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Francisco, California, 94102, or call 415/782-8982.
To make an appointment with the Federal Legal Assistance Self-Help Center in San Jose,

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Plaintiff may visit the San Jose Federal Courthouse, located at 280 South 1st Street, 4th Floor,

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Rooms 4093 & 4095, San Jose, California, 95113, or call 408/297-1480.

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IV.

MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
The Motion for Leave to File an Amended Complaint (Dkt. No. 15) is DENIED as

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unnecessary. Plaintiff may still amend the complaint once as of right without leave of court

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according to Federal Rule of Civil Procedure 15(a).

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V.

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CASE MANAGEMENT CONFERENCE IS CONTINUED
The Court CONTINUES the Initial Case Management Conference set for March 3, 2014 to its

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2:00 p.m. Calendar on Monday, June 2, 2014, in Courtroom 1 of the United States Courthouse

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located at 1301 Clay Street in Oakland, California.

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This Order terminates Docket Nos. 2, 3, 4, and 15.

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IT IS SO ORDERED.

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Date: March 3, 2014

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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