Diez v. Commissioner of Social Security

Filing 15

ORDER denying 2 Plaintiff's Motion for appointment of counsel and setting briefing schedule and hearing date on cross-motions for summary judgment. Signed by Magistrate Judge William V. Gallo on 7/31/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE DINO A DIEZ,

Case No.: 18-CV-156-DMS(WVG)
Plaintiff,

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ORDER (1) DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL [Doc. No. 2] and (2)
SETTING BRIEFING SCHEDULE
AND HEARING DATE ON CROSSMOTIONS FOR SUMMARY
JUDGMENT

v.
COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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A.

Briefing Schedule for Filing of Cross-Motions for Summary Judgment

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On January 23, 2018, Plaintiff filed a complaint seeking judicial review of

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Defendant’s denial of disability benefits under the Social Security Act. (Doc. No. 1.) On

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June 11, 2018, Defendant filed an answer and the administrative record. (Doc. Nos. 11,

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13.) Pursuant to Rule 16.1(e)(3) of the Local Rules, an Early Neutral Evaluation is not

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required to be held in this case. CivLR 16.1(e)(3). This Order sets out a briefing schedule

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and hearing date for cross-motions for summary judgment:
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18-CV-156-DMS(WVG)

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September 14, 2018.

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2.

Defendant shall file and serve an opposition and cross-motion for summary

judgment on or before October 12, 2018.

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Plaintiff shall file and serve a motion for summary judgment on or before

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Plaintiff shall file and serve an opposition to the cross-motion and reply to

Defendant’s opposition on or before November 2, 2018.

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4.

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9, 2018.

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5.

Defendant shall file any reply to Plaintiff’s opposition on or before November
The motions shall be scheduled for hearing on November 9, 2018, at 8:30 a.m.

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Unless the Court directs otherwise in advance, this matter will be resolved on the papers,

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and no personal appearances on the hearing date are required.

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B.

Plaintiff’s Motion for Appointment of Counsel

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A plaintiff in a civil case generally has no right to appointed counsel. See Hernandez

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v. Whiting, 881 F.2d 768, 770-771 (9th Cir. 1989). However, federal courts have discretion

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to request counsel “to represent any person unable to afford counsel.” 28 U.S.C.

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§ 1915(e)(1). But appointment of counsel under section 1915 requires a finding of

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

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finding of exceptional circumstances requires an evaluation of both the likelihood of

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

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of the complexity of the legal issues involved. Neither of these factors is dispositive and

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both must be viewed together before reaching a decision.”

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omitted).

Id. (internal quotations

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Here, there is little basis to support a finding of exceptional circumstances at this

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time. Neither Plaintiff’s request for appointed counsel nor the accompanying affidavit

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provide justification to grant the request at this time. Both documents lack facts or

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circumstances that demonstrate this case is exceptional.

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sufficiently developed such that the Court can make a determination on the likelihood of

Further, the record is not

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success on the merits. Pro se litigants are afforded some leniency to compensate for their

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lack of legal training. For example, “[i]n civil rights cases where the plaintiff appears pro

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se, the court must construe the pleadings liberally and must afford plaintiff the benefit of

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any doubt.” Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted).

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This deferential standard also applies to motions. Bernhardt v. L.A. Cnty., 339 F.3d 920,

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925 (9th Cir. 2003). Accordingly, plaintiff’s pro se status will be taken into consideration

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by the Court when his filings are reviewed.

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Based on the foregoing, Plaintiff’s Motion for Appointment of Counsel is DENIED.
IT IS SO ORDERED.
DATED:

July 31, 2018

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18-CV-156-DMS(WVG)