Smith v. Cook

Filing 11

ORDER denying as moot 9 Plaintiff's Motion to Proceed in forma pauperis. ; denying without prejudice 10 Motion to Appoint Counsel. Signed by Judge Anthony J. Battaglia on 7/6/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAROL ADRIANNE SMITH, Case No.: 17-cv-00961-AJB-WVG Plaintiff, 12 13 14 ORDER: v. ANDY COOK. 15 (1) DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; AND Defendant. 16 (2) DENYING AS MOOT PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 17 18 (Doc. Nos. 9, 10) 19 20 21 22 23 24 25 26 27 Presently before the Court are two motions from Plaintiff Carol Smith (“Plaintiff”). Based on the reasoning below, the Court DENIES Plaintiff’s motion to appoint counsel and DENIES AS MOOT Plaintiff’s motion to proceed in forma pauperis. BACKGROUND Plaintiff filed her complaint on May 8, 2017, asserting several causes of action against Defendant Andy Cook (“Defendant”). (Doc. No. 1.) From what the Court can discern, Plaintiff contends that Defendant failed to adequately represent her interests in a child support case. (Id. at 5.) Specifically, Plaintiff alleges that Defendant acted 28 1 17-cv-00961-AJB-WVG 1 fraudulently, charged her fees of over $70,000.00, and failed to correctly address her claims 2 for military spousal retirement. (Id.) On the same day, Plaintiff also filed a motion for leave 3 to proceed in forma pauperis (“IFP”) and a motion to appoint counsel. (Doc. Nos. 2, 3.) On 4 May 12, 2017, the Court granted Plaintiff’s motion to proceed IFP, sua sponte dismissed 5 Plaintiff’s complaint for failure to state a claim, and denied as moot her motion to appoint 6 counsel. (Doc. No. 4.) On June 20, 2017, Plaintiff filed her first amended complaint 7 (“FAC”), a second motion for leave to proceed IFP, and her second motion to appoint 8 counsel. (Doc. Nos. 8, 9, 10.) 9 LEGAL STANDARD 10 The Constitution provides no right to appointment of counsel in a civil case unless 11 an indigent “litigant may lose his [or her] physical liberty if he [or she] loses the litigation.” 12 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 13 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. 14 However, this discretion may be exercised only under “exceptional circumstances.” Terrell 15 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances 16 requires an evaluation of both the ‘likelihood of success on the merits and the ability of the 17 petitioner to articulate his claims pro se in light of the complexity of the legal issues 18 involved.’ Neither of these issues is dispositive and both must be viewed together before 19 reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 20 1986) (citation omitted)). 21 DISCUSSION 22 Plaintiff’s motion for appointment of counsel states that she resides in Beaverton, 23 Oregon, and that Oregon does not provide pro se clinic services. (Doc. No. 10 at 3.) 24 Plaintiff then requests a pro bono attorney, or access via the phone to a pro bono attorney 25 in the federal pro se office. (Id.) Plaintiff makes no further arguments concerning the 26 complexity or merits of her case. 27 Having reviewed Plaintiff’s motion, the Court concludes that no exceptional 28 circumstances exist to justify appointment of counsel for Plaintiff at this time. The Court 2 17-cv-00961-AJB-WVG 1 notes that “any pro se litigant certainly would be better served with the assistance of 2 counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on 3 other grounds by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). But a plaintiff 4 is only entitled to appointed counsel if he or she can show “that because of the complexity 5 of the claims [they are] unable to articulate [their] positions.” Rand, 113 F.3d at 1525. 6 Bearing this in mind, the Court finds that Plaintiff is capable of articulating her claims and 7 navigating the federal court system as demonstrated by the filing of her FAC. Moreover, 8 Plaintiff’s arguments that she resides in Oregon with two young children and must travel 9 to California for court are unfortunately not reasons to warrant the finding of exceptional 10 circumstances to support a motion for appointment of counsel. Accordingly, the Court 11 DENIES Plaintiff’s motion to appoint counsel WITHOUT PREJUDICE. 12 On a final note, the Court highlights that pursuant to the Court’s order dated May 13 12, 2017, Plaintiff’s initial motion to proceed IFP was granted, and her complaint was 14 dismissed without prejudice. (Doc. No. 4.) The Court then provided Plaintiff thirty days to 15 file a new amended complaint and inaccurately instructed Plaintiff to file another motion 16 for IFP. As a result, on June 20, 2017, Plaintiff filed a second motion to proceed IFP 17 pursuant to the Court’s instructions. However, the Court clarifies that as Plaintiff’s initial 18 motion for IFP was granted, Plaintiff’s second motion for IFP is DENIED AS MOOT. 19 CONCLUSION 20 Based on the foregoing, Plaintiff’s motion for appointment of counsel is DENIED 21 WITHOUT PREJUDICE, (Doc. No. 10), and Plaintiff’s motion for leave to proceed IFP 22 is DENIED AS MOOT. (Doc. No. 9.) 23 24 IT IS SO ORDERED. 25 Dated: July 6, 2017 26 27 28 3 17-cv-00961-AJB-WVG

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