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)

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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

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