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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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 DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL v. ANDY COOK, Defendant. 15 (Doc. No. 56) 16 17 Presently before the Court is Plaintiff Carol Smith’s (“Plaintiff”) motion to appoint 18 counsel filed on April 17, 2018. (Doc. No. 56.) Based on the reasoning below, the Court 19 DENIES Plaintiff’s motion. 20 BACKGROUND 21 On May 8, 2017, Plaintiff filed her complaint alleging that Defendant 22 misrepresented her interests in her child support case. (See generally Doc. No. 1.) For 23 reference, some of the claims include bad faith, “malicious process,” racial discrimination, 24 fraud, “willful suppression of evidence,” and breach of fiduciary duty. (Id.) On May 16, 25 2017, Plaintiff’s complaint was sua sponte dismissed for failure to state a claim and her 26 motion to appoint counsel was denied as moot. (Doc. No. 5.) 27 Thereafter, Defendant filed a motion to dismiss on September 13, 2017. (Doc. No. 28 1 17-cv-00961-AJB-WVG 1 18.) In response, Plaintiff filed a variety of motions: (1) a motion for withdrawal of 2 Defendant’s attorneys, which was denied, (Doc. Nos. 22, 45); (2) three ex parte motions— 3 one of which was withdrawn and the other two were denied, (Doc. Nos. 28, 29, 30, 31, 35, 4 36); (3) a motion for sanctions, which was denied, (Doc. Nos. 32, 45); (4) a motion for 5 preliminary injunction, which was later withdrawn, (Doc. Nos. 33, 37); (5) a motion for 6 declaratory judgment, which was later withdrawn, (Doc. Nos. 43, 51); and (6) a motion for 7 leave to amend her complaint, (Doc. No. 49). In an effort to remove her state court case, 8 Plaintiff then filed the exact same complaint in this Court on March 20, 2018—18-cv-572. 9 In the interests of judicial efficiency, the Court consolidated the two cases, granted Plaintiff 10 leave to file a second amended complaint, and denied as moot Defendant’s motion to 11 dismiss. (Doc. No. 54.) 12 LEGAL STANDARD 13 The Constitution provides no right to appointment of counsel in a civil case unless 14 an indigent “litigant may lose his [or her] physical liberty if he [or she] loses the litigation.” 15 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 16 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. 17 However, this discretion may be exercised only under “exceptional circumstances.” Terrell 18 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances 19 requires an evaluation of both ‘the likelihood of success on the merits and the ability of the 20 petitioner to articulate his claims pro se in light of the complexity of the legal issues 21 involved.’ Neither of these factors is dispositive and both must be viewed together before 22 reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 23 1986)). 24 DISCUSSION 25 Instead of providing up to date information as to her current situation, Plaintiff’s 26 motion for appointment of counsel directs the Court to look at CM/ECF document number 27 3 filed on May 8, 2017. (Doc. No. 56 at 3.) The remainder of Plaintiff’s motion states that 28 her claims are meritorious, that she has made a reasonably diligent effort to obtain counsel, 2 17-cv-00961-AJB-WVG 1 and that she is unable to find an attorney willing to represent her in terms she can afford as 2 a single parent. (Id. at 4.) Further, Plaintiff claims that she is disabled. (Id.) 3 Although Plaintiff has established indigence by successfully obtaining in forma 4 pauperis status, appointing counsel to represent Plaintiff at this time would be 5 inappropriate because she has failed to demonstrate that she is likely to succeed on the 6 merits. Moreover, as evidenced by the various motions filed by Plaintiff, the Court does 7 not find that she has had any extreme difficulty in attempting to litigate her case. See 8 Wilborn, 789 F.2d at 1331. Furthermore, Plaintiff has failed to demonstrate her recent 9 efforts to obtain counsel. See Adkins v. Commissioner of Social Security, No. 3:13-cv- 10 0138-JAH (JMA), 2013 WL 12198532, at *2 (S.D. Cal. Jan. 28, 2013) (“Plaintiff’s failure 11 to employ any effort to secure counsel is not indicative of a ‘diligent effort to obtain 12 counsel.’”) (citation omitted). Finally, though claims of disability in some cases may 13 constitute an extraordinary circumstance, Plaintiff’s general statement that she is disabled 14 is too broad and unsupported to justify appointment of counsel in her case. 15 The Court notes that “any pro se litigant certainly would be better served with the 16 assistance of counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); see also 17 Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will seldom be in a position to investigate 18 easily the facts necessary to support the case.”). However, the Court is unable to provide 19 counsel unless there exists some extraordinary circumstance. Presently, no such situation 20 exists in the instant matter. 21 22 CONCLUSION As explained in more detail above, Plaintiff’s motion for appointment of counsel is 23 DENIED WITHOUT PREJUDICE. 24 IT IS SO ORDERED. 25 Dated: April 20, 2018 26 27 28 3 17-cv-00961-AJB-WVG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 17-cv-00961-AJB-WVG

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