Larsen v. Colvin

Filing 14

ORDER Denying 8 Motion to Appoint Counsel. If the District Judge extends the time to perfect service as this Court recommended, Larsen's 9 motion for such U.S. Marshal support is Granted. Signed by Magistrate Judge Andrew G. Schopler on 5/3/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Christopher Michael Larsen, 11 Case No.: 16-cv-2847-JM-AGS Plaintiff, 12 v. 13 Carolyn W. Colvin, Commissioner of Social Security, 14 15 ORDER GRANTING MOTION FOR USMS SERVICE [Doc. 9] AND DENYING MOTION FOR APPOINTED COUNSEL [Doc. 8] Defendant. 16 17 In a separate Report and Recommendation filed today, this Court recommended 18 denying pro se plaintiff Christopher Larsen’s motion for a default judgment, but granting 19 his motion to extend time to perfect service. If the District Judge disagrees with either 20 recommendation, this case is effectively over. But if the District Judge adopts both 21 recommendations, Larsen’s remaining motions become relevant. Those are adjudicated 22 below. 23 A. Motion to Direct Service by the U.S. Marshal [Doc. 9] 24 When a “plaintiff is authorized to proceed in forma pauperis”—like Larsen—the 25 Court “must” order that “service be made by a United States marshal or deputy 26 marshal. . . .” Fed. R. Civ. P. 4(c)(3). Thus, if the District Judge extends the time to perfect 27 service as this Court recommended, Larsen’s motion for such U.S. Marshal support is 28 GRANTED. Also, for each individual or entity he wishes to serve, Larsen must provide 1 16-cv-2847-JM-AGS 1 the Marshal with a completed USMS Form 285, a completed summons, and a copy of the 2 complaint. The Clerk shall mail a copy of this order to the U.S. Marshal for the Southern 3 District of California. 4 B. Motion for Appointed Counsel [Doc. 8] 5 Larsen also requests appointed counsel, explaining that several attorneys have 6 refused to take his case and “the level of stress and frustration inherent in federal lawsuits 7 has worsened some of [his] symptoms.” [Doc. 8, at 2.] “Generally, a plaintiff in a civil 8 case has no right to appointed counsel,” absent a showing of indigency and “exceptional 9 circumstances.” Johnson v. Comm’n of Soc. Sec., Civil No. 3:11-cv-2596-JAH (BLM), 10 2012 WL 124793, at *2 (S.D. Cal. Jan. 17, 2012) (citations omitted); see also 28 U.S.C. 11 § 1915(e)(1). But see Brinker v. Colvin, 603 F. App’x 609, 610 (9th Cir. 2015) (“The 12 district court did not abuse its discretion in denying Brinker’s motion for appointment of 13 counsel because there are no provisions for supplying counsel at government expense in 14 social security cases.”). “A finding of exceptional circumstances requires an evaluation of 15 both ‘the likelihood of success on the merits and the ability of the petitioner to articulate 16 his claims pro se in light of the complexity of the legal issues involved.’ Neither of these 17 factors is dispositive and both must be viewed together before reaching a decision.” Terrell 18 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citations omitted). 19 Even if Larsen were otherwise entitled to appointed counsel, he has not shown such 20 exceptional circumstances. First, since the administrative record has not yet been filed, the 21 Court cannot independently evaluate Larsen’s likelihood of success on the merits, and 22 Larsen has made no showing on this point. Second, he has thus far articulated his legal 23 position well; his complaint and various motions are clearly and cogently written. 24 Although Larsen appears to have improperly effected service—see the Report and 25 Recommendation filed at the same time as this order—he also identified his error and 26 requested appropriate relief. A single service mistake is not exceptional, especially when 27 the Court ultimately recommends that he be given additional time to remedy the 28 shortcoming. Larsen does not argue otherwise as to these points, but contends that the 2 16-cv-2847-JM-AGS 1 stress of a federal lawsuit has worsened his symptoms. But without more detail, the stress 2 that is an unfortunate and innate characteristic of federal litigation cannot qualify as an 3 exceptional circumstance. 4 5 For these reasons, Larsen’s motion for appointed counsel is DENIED. Dated: May 3, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-cv-2847-JM-AGS

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