Phillips v. Department of the Navy

Filing 4

ORDER (1) Denying 2 Motion to Proceed In Forma Pauperis. (2) Denying 3 Motion for Appointment of Counsel without prejudice. Signed by Judge Janis L. Sammartino on 2/12/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ELLA M. PHILLIPS, Case No.: 18-CV-289 JLS (KSC) Plaintiff, 11 12 13 ORDER (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL v. DEPARTMENT OF THE NAVY, 14 Defendant. (ECF Nos. 2, 3) 15 16 17 18 Presently before the Court are Plaintiff Ella M. Phillips’s Motion to Proceed In 19 Forma Pauperis (“IFP”), (“IFP Mot.,” ECF No. 2), and Motion for Appointment of 20 Counsel, (“Counsel Mot.,” ECF No. 3). 21 IFP MOTION 22 All parties instituting any civil action, suit, or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 25 prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 26 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A 27 federal court may authorize the commencement of an action without the prepayment of 28 1 18-CV-289 JLS (KSC) 1 fees if the party submits an affidavit, including a statement of assets, showing that he is 2 unable to pay the required filing fee. 28 U.S.C. § 1915(a). 3 In the present case, Plaintiff has submitted an affidavit indicating her average 4 monthly income is $3,612.80, and she expects to earn $3,689.60 next month. (IFP Mot. 5 1.) Plaintiff’s monthly expenses are $3,575.50, and she owns a home with a value of 6 $400,000. (Id. at 3–5.) In sum, Plaintiff’s income exceeds her expenses and she is not 7 without assets. Plaintiff has not demonstrated she is unable to pay the requisite filing fee. 8 Thus, the Court DENIES Plaintiff’s Motion to Proceed IFP. 9 10 11 MOTION FOR APPOINTMENT OF COUNSEL Plaintiff requests appointment of counsel because she can no longer afford to pay the attorney she retained to assist her in this case. (Counsel Mot. 3.) 12 The Constitution provides no right to appointment of counsel in a civil case unless 13 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. 14 of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district 15 courts have the discretion to appoint counsel for indigent persons. This discretion, however, 16 may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 17 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation 18 of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate 19 his claims pro se in light of the complexity of the legal issues involved.’ Neither of these 20 issues is dispositive and both must be viewed together before reaching a decision.” Id. 21 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 22 The Court finds Plaintiff has not satisfied the standards for appointment of counsel 23 under 28 U.S.C. § 1915(e)(1). First, Plaintiff’s Complaint has not yet been served or 24 answered, so the likelihood of Plaintiff’s success on the merits in this case is therefore not 25 yet clear at the early stage of the litigation. Second, Plaintiff has not demonstrated an 26 inability to articulate her claims thus far. She states she was assisted by an attorney when 27 attempting to settle with Defendant, and has only recently filed her Complaint. Plaintiff 28 has successfully filed a Complaint against Defendant, along with the two present Motions. 2 18-CV-289 JLS (KSC) 1 Therefore, the Court finds that neither the interests of justice nor any exceptional 2 circumstances warrant appointment of counsel at this time and DENIES Plaintiff's motion, 3 (ECF No. 3). This denial is WITHOUT PREJUDICE should Plaintiff later be able to 4 make the requisite showing of exceptional circumstances. 5 CONCLUSION 6 In sum, the Court DENIES Plaintiff’s Motion to Proceed IFP, (ECF No. 2). To 7 proceed with his case, Plaintiff may, within thirty days of the date on which this Order is 8 electronically docketed, either (1) pay the $400 filing fee for civil cases, or (2) file a new 9 motion to proceed in forma pauperis. The Court also DENIES Plaintiff’s Motion for 10 Counsel, (ECF No. 3). Should circumstances change, Plaintiff may be permitted to file 11 another Motion for Appointment of Counsel. 12 13 IT IS SO ORDERED. Dated: February 12, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 18-CV-289 JLS (KSC)

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