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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELLA M. PHILLIPS,

Case No.: 18-CV-289 JLS (KSC)
Plaintiff,

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ORDER (1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;
(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
DEPARTMENT OF THE NAVY,

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Defendant.
(ECF Nos. 2, 3)

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Presently before the Court are Plaintiff Ella M. Phillips’s Motion to Proceed In

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Forma Pauperis (“IFP”), (“IFP Mot.,” ECF No. 2), and Motion for Appointment of

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Counsel, (“Counsel Mot.,” ECF No. 3).

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IFP MOTION

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A

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federal court may authorize the commencement of an action without the prepayment of

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18-CV-289 JLS (KSC)

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fees if the party submits an affidavit, including a statement of assets, showing that he is

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unable to pay the required filing fee. 28 U.S.C. § 1915(a).

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In the present case, Plaintiff has submitted an affidavit indicating her average

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monthly income is $3,612.80, and she expects to earn $3,689.60 next month. (IFP Mot.

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1.) Plaintiff’s monthly expenses are $3,575.50, and she owns a home with a value of

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$400,000. (Id. at 3–5.) In sum, Plaintiff’s income exceeds her expenses and she is not

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without assets. Plaintiff has not demonstrated she is unable to pay the requisite filing fee.

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Thus, the Court DENIES Plaintiff’s Motion to Proceed IFP.

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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.)

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

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an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept.

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of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district

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courts have the discretion to appoint counsel for indigent persons. This discretion, however,

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may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation

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of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved.’ Neither of these

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issues is dispositive and both must be viewed together before reaching a decision.” Id.

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court finds Plaintiff has not satisfied the standards for appointment of counsel

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under 28 U.S.C. § 1915(e)(1). First, Plaintiff’s Complaint has not yet been served or

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answered, so the likelihood of Plaintiff’s success on the merits in this case is therefore not

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yet clear at the early stage of the litigation. Second, Plaintiff has not demonstrated an

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inability to articulate her claims thus far. She states she was assisted by an attorney when

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attempting to settle with Defendant, and has only recently filed her Complaint. Plaintiff

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has successfully filed a Complaint against Defendant, along with the two present Motions.
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18-CV-289 JLS (KSC)

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Therefore, the Court finds that neither the interests of justice nor any exceptional

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circumstances warrant appointment of counsel at this time and DENIES Plaintiff's motion,

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(ECF No. 3). This denial is WITHOUT PREJUDICE should Plaintiff later be able to

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make the requisite showing of exceptional circumstances.

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CONCLUSION

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In sum, the Court DENIES Plaintiff’s Motion to Proceed IFP, (ECF No. 2). To

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proceed with his case, Plaintiff may, within thirty days of the date on which this Order is

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electronically docketed, either (1) pay the $400 filing fee for civil cases, or (2) file a new

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motion to proceed in forma pauperis. The Court also DENIES Plaintiff’s Motion for

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Counsel, (ECF No. 3). Should circumstances change, Plaintiff may be permitted to file

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another Motion for Appointment of Counsel.

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IT IS SO ORDERED.
Dated: February 12, 2018

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