Medina v. Colvin

Filing 6

ORDER Granting 2 Plaintiff's Motion to Proceed in Forma Pauperis; and Denying 3 Plaintiff's Motion for Appointment of Counsel. US Marshal shall effect service of complaint. Signed by Judge Gonzalo P. Curiel on 2/19/16. (All non-registered users served via U.S. Mail Service)(IFP package mailed to Plaintiff. dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WALDO R. MEDINA,

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CASE NO. 16CV215-GPC(KSC)
Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS; AND
DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF
COUNSEL

v.

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CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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[Dkt. Nos. 2, 3.]

On January 28, 2016, Plaintiff Waldo Medina (“Plaintiff”) filed this action
pursuant to 42 U.S.C. § 405(g) of the Social Security Act along with a motion to
proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a). (ECF Nos. 1, 2.) On
that same day, Plaintiff additionally filed a motion for appointment of counsel. (ECF
No. 3.)
A.

Plaintiff’s Motion to Proceed IFP
All proceedings filed with the District Court require a filing fee unless the Court

grants IFP status, waiving the fee. Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). Under 28 U.S.C. § 1915(a), the Court may waive the filing fee if a party
demonstrates an inability to pay by submitting an affidavit reporting all assets of the
individual. 28 U.S.C. § 1915(a).
Here, Plaintiff submitted a declaration reporting that he is not presently
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1 employed and that he has not worked since 2002. He receives money from public
2 assistance and has $98.86 in his checking account. He owns a car worth around
3 $800.00. He does not own any real estate; however, due to the recent deaths of his
4 parents, he may receive assets, including a home, from his parents’ will which is
5 currently being disputed in probate. Plaintiff has sufficiently demonstrated that he is
6 unable to pay the required filing fee and meets the requirements to proceed IFP.
7 Therefore, the Court GRANTS Plaintiff's motion to proceed IFP.
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Plaintiff’s Motion for Appointment of Counsel

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Plaintiff has also filed a motion for appointment of counsel. (ECF No. 3.)

10 Generally, a civil plaintiff has no right to appointed counsel. See Hernandez v.
11 Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989)
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Nonetheless, federal courts have discretion to appoint counsel for any party

13 proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1); see also Johnson v. Comm’r of
14 Soc. Sec., No. 3:11-cv-2596-JAH (BLM), 2012 WL 124793, at *2 (S.D. Cal. Jan. 17,
15 2002). Under the law of this circuit, however, court appointment of counsel requires
16 a finding of “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
17 Cir. 1991). In order to assess whether such circumstances exist, the Court must evaluate
18 both a petitioner’s (a) likelihood of success on the merits and (b) ability to articulate
19 his claims in light of the complexity of the legal issues involved. Id. “Neither of these
20 factors is dispositive and both must be viewed together before reaching a decision.” Id.
21 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). This Circuit,
22 however, has determined that not every difficulty a pro se plaintiff encounters in
23 prosecuting his case is a complexity entitling him to counsel. Wilborn, 789 F.2d at
24 1331 (“If all that was required to establish successfully the complexity of the relevant
25 issues was a demonstration of the need for [the] development of further facts,
26 practically all cases would involve complex legal issues. Thus, although Wilborn may
27 have found it difficult to articulate his claims pro se, he has neither demonstrated a
28 likelihood of success on the merits nor shown that the complexity of the issues
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1 involved was sufficient to require designation of counsel.” )
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Here, at this time, based on the Complaint, the Court cannot determine whether

3 Plaintiff is likely to succeed on the merits of his claims. In addition, Plaintiff has not
4 made a showing of his inability to articulate the basis of his claims in light of the
5 complexities of the issues involved. Under these circumstances, the Court DENIES
6 Plaintiff’s request for appointment of counsel without prejudice.
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CONCLUSION
Based on the above, the Court GRANTS Plaintiff’s motion to proceed in

9 forma pauperis and DENIES Plaintiff’s motion for appointment of counsel without
10 prejudice.
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IT IS HEREBY ORDERED that the Clerk of Court shall issue a summons

12 as to Plaintiff's Complaint (ECF No. 1) upon Defendant and shall forward it to
13 Plaintiff along with a blank U.S. Marshal Form 285 for the Defendant. In addition,
14 the Clerk shall provide Plaintiff with a certified copy of this Order and a certified
15 copy of her Complaint and the summons so that she may serve the Defendant. Upon
16 receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285 as
17 completely and accurately as possible, and to return them to the United States
18 Marshal according to the instructions provided by the Clerk in the letter
19 accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy
20 of the Complaint and summons upon the Defendant as directed by Plaintiff on the
21 USM Form 285. All costs of service shall be advanced by the United States. See 28
22 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
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IT IS SO ORDERED.

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HON. GONZALO P. CURIEL
United States District Judge

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