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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Christopher Michael Larsen,

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Case No.: 16-cv-2847-JM-AGS
Plaintiff,

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v.

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Carolyn W. Colvin, Commissioner of
Social Security,

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ORDER GRANTING MOTION FOR
USMS SERVICE [Doc. 9] AND
DENYING MOTION FOR
APPOINTED COUNSEL [Doc. 8]

Defendant.

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In a separate Report and Recommendation filed today, this Court recommended

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denying pro se plaintiff Christopher Larsen’s motion for a default judgment, but granting

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his motion to extend time to perfect service. If the District Judge disagrees with either

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recommendation, this case is effectively over. But if the District Judge adopts both

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recommendations, Larsen’s remaining motions become relevant. Those are adjudicated

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below.

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A.

Motion to Direct Service by the U.S. Marshal [Doc. 9]

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When a “plaintiff is authorized to proceed in forma pauperis”—like Larsen—the

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Court “must” order that “service be made by a United States marshal or deputy

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marshal. . . .” Fed. R. Civ. P. 4(c)(3). Thus, if the District Judge extends the time to perfect

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service as this Court recommended, Larsen’s motion for such U.S. Marshal support is

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GRANTED. Also, for each individual or entity he wishes to serve, Larsen must provide
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the Marshal with a completed USMS Form 285, a completed summons, and a copy of the

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complaint. The Clerk shall mail a copy of this order to the U.S. Marshal for the Southern

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District of California.

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B.

Motion for Appointed Counsel [Doc. 8]

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Larsen also requests appointed counsel, explaining that several attorneys have

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refused to take his case and “the level of stress and frustration inherent in federal lawsuits

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has worsened some of [his] symptoms.” [Doc. 8, at 2.] “Generally, a plaintiff in a civil

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case has no right to appointed counsel,” absent a showing of indigency and “exceptional

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circumstances.” Johnson v. Comm’n of Soc. Sec., Civil No. 3:11-cv-2596-JAH (BLM),

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2012 WL 124793, at *2 (S.D. Cal. Jan. 17, 2012) (citations omitted); see also 28 U.S.C.

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§ 1915(e)(1). But see Brinker v. Colvin, 603 F. App’x 609, 610 (9th Cir. 2015) (“The

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district court did not abuse its discretion in denying Brinker’s motion for appointment of

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counsel because there are no provisions for supplying counsel at government expense in

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social security cases.”). “A finding of exceptional circumstances requires an evaluation of

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both ‘the likelihood of success on the merits and the ability of the petitioner to articulate

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his claims pro se in light of the complexity of the legal issues involved.’ Neither of these

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factors is dispositive and both must be viewed together before reaching a decision.” Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citations omitted).

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Even if Larsen were otherwise entitled to appointed counsel, he has not shown such

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exceptional circumstances. First, since the administrative record has not yet been filed, the

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Court cannot independently evaluate Larsen’s likelihood of success on the merits, and

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Larsen has made no showing on this point. Second, he has thus far articulated his legal

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position well; his complaint and various motions are clearly and cogently written.

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Although Larsen appears to have improperly effected service—see the Report and

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Recommendation filed at the same time as this order—he also identified his error and

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requested appropriate relief. A single service mistake is not exceptional, especially when

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the Court ultimately recommends that he be given additional time to remedy the

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shortcoming. Larsen does not argue otherwise as to these points, but contends that the
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stress of a federal lawsuit has worsened his symptoms. But without more detail, the stress

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that is an unfortunate and innate characteristic of federal litigation cannot qualify as an

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exceptional circumstance.

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For these reasons, Larsen’s motion for appointed counsel is DENIED.
Dated: May 3, 2017

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