Smith v. Cook

Filing 57

ORDER denying without prejudice 56 Plaintiff's Motion to Appoint Counsel. Signed by Judge Anthony J. Battaglia on 4/20/2018. (acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CAROL ADRIANNE SMITH,

Case No.: 17-cv-00961-AJB-WVG
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

v.
ANDY COOK,
Defendant.

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(Doc. No. 56)

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Presently before the Court is Plaintiff Carol Smith’s (“Plaintiff”) motion to appoint

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counsel filed on April 17, 2018. (Doc. No. 56.) Based on the reasoning below, the Court

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DENIES Plaintiff’s motion.

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BACKGROUND

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On May 8, 2017, Plaintiff filed her complaint alleging that Defendant

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misrepresented her interests in her child support case. (See generally Doc. No. 1.) For

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reference, some of the claims include bad faith, “malicious process,” racial discrimination,

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fraud, “willful suppression of evidence,” and breach of fiduciary duty. (Id.) On May 16,

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2017, Plaintiff’s complaint was sua sponte dismissed for failure to state a claim and her

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motion to appoint counsel was denied as moot. (Doc. No. 5.)

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Thereafter, Defendant filed a motion to dismiss on September 13, 2017. (Doc. No.

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18.) In response, Plaintiff filed a variety of motions: (1) a motion for withdrawal of

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Defendant’s attorneys, which was denied, (Doc. Nos. 22, 45); (2) three ex parte motions—

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one of which was withdrawn and the other two were denied, (Doc. Nos. 28, 29, 30, 31, 35,

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36); (3) a motion for sanctions, which was denied, (Doc. Nos. 32, 45); (4) a motion for

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preliminary injunction, which was later withdrawn, (Doc. Nos. 33, 37); (5) a motion for

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declaratory judgment, which was later withdrawn, (Doc. Nos. 43, 51); and (6) a motion for

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leave to amend her complaint, (Doc. No. 49). In an effort to remove her state court case,

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Plaintiff then filed the exact same complaint in this Court on March 20, 2018—18-cv-572.

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In the interests of judicial efficiency, the Court consolidated the two cases, granted Plaintiff

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leave to file a second amended complaint, and denied as moot Defendant’s motion to

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dismiss. (Doc. No. 54.)

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LEGAL STANDARD

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The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent “litigant may lose his [or her] physical liberty if he [or she] loses the litigation.”

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Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. §

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1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons.

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However, this discretion may be exercised only under “exceptional circumstances.” Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances

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requires an evaluation of both ‘the likelihood of success on the merits and the ability of the

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petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.’ Neither of these factors is dispositive and both must be viewed together before

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reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)).

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DISCUSSION

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Instead of providing up to date information as to her current situation, Plaintiff’s

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motion for appointment of counsel directs the Court to look at CM/ECF document number

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3 filed on May 8, 2017. (Doc. No. 56 at 3.) The remainder of Plaintiff’s motion states that

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her claims are meritorious, that she has made a reasonably diligent effort to obtain counsel,
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and that she is unable to find an attorney willing to represent her in terms she can afford as

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a single parent. (Id. at 4.) Further, Plaintiff claims that she is disabled. (Id.)

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Although Plaintiff has established indigence by successfully obtaining in forma

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pauperis status, appointing counsel to represent Plaintiff at this time would be

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inappropriate because she has failed to demonstrate that she is likely to succeed on the

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merits. Moreover, as evidenced by the various motions filed by Plaintiff, the Court does

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not find that she has had any extreme difficulty in attempting to litigate her case. See

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Wilborn, 789 F.2d at 1331. Furthermore, Plaintiff has failed to demonstrate her recent

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efforts to obtain counsel. See Adkins v. Commissioner of Social Security, No. 3:13-cv-

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0138-JAH (JMA), 2013 WL 12198532, at *2 (S.D. Cal. Jan. 28, 2013) (“Plaintiff’s failure

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to employ any effort to secure counsel is not indicative of a ‘diligent effort to obtain

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counsel.’”) (citation omitted). Finally, though claims of disability in some cases may

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constitute an extraordinary circumstance, Plaintiff’s general statement that she is disabled

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is too broad and unsupported to justify appointment of counsel in her case.

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The Court notes that “any pro se litigant certainly would be better served with the

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assistance of counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); see also

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Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will seldom be in a position to investigate

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easily the facts necessary to support the case.”). However, the Court is unable to provide

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counsel unless there exists some extraordinary circumstance. Presently, no such situation

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exists in the instant matter.

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CONCLUSION
As explained in more detail above, Plaintiff’s motion for appointment of counsel is

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DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated: April 20, 2018

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