Palmer-Carri v. Department of Veterans Affairs et al

Filing 6

ORDER denying 5 Motion to Appoint Counsel. Signed by Judge Cynthia Bashant on 11/16/2017. (All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

JANET PALMER-CARRI,

11

Case No. 17-cv-02250-BAS-JLB
Plaintiff,

12
13

v.

14

ORDER DENYING MOTION TO
APPOINT COUNSEL
[ECF No. 5]

DEPARTMENT OF VETERAN
AFFAIRS, et al.,

15

Defendants.

16
17

Presently before the Court is Plaintiff Janet Palmer-Carri’s motion to appoint

18

counsel on her behalf. (ECF No. 5.) Plaintiff states that she has made various efforts

19

to obtain counsel, but has been unsuccessful. (Id. at 3.) In her motion, she indicates

20

that she has been turned away by several lawyers. (Id.) Plaintiff indicates that even

21

if she could obtain a lawyer, she would not be able to afford the costs of assistance

22

rendered. (Id.) In support of her motion, Plaintiff has attached an affidavit detailing

23

her sources of income and monthly expenses. (Id. at 4–6.) For the reasons below,

24

the Court denies Plaintiff’s request.

25

I.

DISCUSSION

26

A.

Legal Standard

27

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

28

unless an indigent litigant may lose her physical liberty if she loses the litigation.
–1–

17cv2250

1

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Even where the plaintiff is

2

proceeding pro se or in forma pauperis, district courts do not have the authority “to

3

make coercive appointments of counsel.” Mallard v. United States Dist. Court, 490

4

U.S. 296, 310 (1989). However, “the court may request an attorney to represent any

5

person unable to afford counsel.” 28 U.S.C. §1915(e)(1). In the Ninth Circuit, “the

6

decision to appoint such counsel is within the sound discretion of the trial court and

7

is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390

8

F.3d 1101, 1103 (9th Cir. 2004) (internal quotations omitted). A finding that

9

exceptional circumstances exist entails “an evaluation of both the ‘likelihood of

10

success on the merits and the ability of the plaintiff to articulate his claims pro se in

11

light of the complexity of the legal issues involved.’ Neither of these issues is

12

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

13

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn v. Escalderon, 789

14

F.2d 1328, 1331 (9th Cir. 1986)).

15

B.

Analysis

16

Plaintiff’s motion does not aver that exceptional circumstances exist such that

17

this Court should request an attorney represent her. Rather, the sole basis Plaintiff

18

advances is that she cannot afford counsel. Under Ninth Circuit precedent, the

19

inability to afford counsel by itself is not a sufficient basis for a court order requesting

20

counsel for a pro se plaintiff. See Agyeman, 390 F.3d at 1103. This is true even

21

when a plaintiff is proceeding in forma pauperis and thus, by definition, has shown

22

an inability to afford the cost to initiate proceedings in federal court. See United

23

States v. Madden, 352 F.2d 792, 793–94 (9th Cir. 1965). It would be inconsistent for

24

this Court to hold Plaintiff—who is not proceeding in forma pauperis—to a lesser

25

standard than a plaintiff who is proceeding as such.

26

Plaintiff otherwise fails to show that exceptional circumstances exist in this

27

case to warrant an order requesting appointment of counsel. First, Plaintiff has not

28

provided any evidence that she has a likelihood of success on the merits. A plaintiff
–2–

17cv2250

1

that provides no evidence of her likelihood of success fails to satisfy the first factor

2

of the Wilborn test. See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993);

3

see also Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (concluding

4

likelihood of success not shown where the plaintiff did not present any evidence other

5

than his own assertions to support his claims). In any event, at this nascent stage of

6

the litigation, the Court is unable to determine whether Plaintiff has a likelihood of

7

success on the merits based on the pleadings. Second, the Court finds that the case

8

is not sufficiently complex that Plaintiff cannot articulate her asserted claims. See,

9

e.g., Williams v. ICC Committee, 812 F. Supp. 1029, 1034 (N.D Cal. 1992).

10
11
12
13

II.

CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Plaintiff’s motion for

appointment of counsel. (ECF No. 5.)
IT IS SO ORDERED.

14
15

DATED: November 16, 2017

16
17
18
19
20
21
22
23
24
25
26
27
28
–3–

17cv2250