Johnson v. Kijakazi et al

Filing 88

ORDER Denying 85 Ex Parte Emergency Motion to Stay Proceedings and Appoint Counsel. Signed by Judge Janis L. Sammartino on 8/29/24. (aas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES JOHNSON,

Case No.: 23-CV-481 JLS (AHG)
Plaintiff,

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v.

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MARTIN O’MALLEY, Commissioner,
Social Security Administration; ERIC V.
BENHAM, Administrate Law Judge;
LAURA MIDDLETON, Administrative
Appeals Judge; MS. KAWANO (full
name and title to be ascertained); and
DOES 4 to 100,

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ORDER DENYING EX PARTE
EMERGENCY MOTION TO STAY
PROCEEDINGS AND APPOINT
COUNSEL
(ECF No. 85)

Defendants.

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Presently before the Court is a motion submitted by Plaintiff James Johnson

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(“Plaintiff”) captioned “Emergency Ex Parte Motion to: 1) Stay Proceedings; 2) Compel

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Wardships to Appear and Provide Legal Counsel to Ward” (“Mot.,” ECF No. 85). Plaintiff

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requests the “immediate issuance and service of subpoenas requiring hearing and

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appearances of Plaintiff’s Financial Wardships”—identified as United States Social

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Security Administration Commissioner, Martin O’Malley, and California Health and

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Human Services Agency Secretary, Mark Ghaly—with the purpose of said hearing to

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“consider a court Order compelling” either one or both “Financial Wardships” to pay all
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23-CV-481 JLS (AHG)

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costs and fees required for securing and maintaining a qualified legal representative for

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Plaintiff in this instant case. Mot. at 2. Plaintiff also requests the “immediate stay of all

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proceedings, [and] rulings in this case for 60-days pending the completion of this motion

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and respective order/s[.]” Id. The Court construes this as a motion to appoint counsel and

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for a stay. Having carefully considered Plaintiff’s arguments and the law, the Court

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DENIES Plaintiff’s Motion.

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The Court has previously denied several of Plaintiff’s requests for the appointment

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of counsel. See ECF Nos. 32, 39, 45. In the present Motion, Plaintiff contends he does not

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seek direct assistance “from the court’s ‘for profit’ pro bono fund reserved only for winning

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cases but demands assistance from the wardships.” Mot. at 7. Plaintiff argues Martin

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O’Malley and Mark Ghaly must be compelled to provide him with proper legal

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representation because “a) they are in absolute control of Plaintiff’s benefits, hence his

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ability to not only survive but to hire legal counsel, and b) the government has violated

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Plaintiff’s Rights, the continuation of which will result in the permanent loss of benefits,

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hence Plaintiff’s survival.” Mot. at 19. However, Plaintiff’s cited cases referencing

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wardships of American Indians, seamen, children, mentally incompetent individuals, and

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institutionalized individuals, id. at 19–22, do not establish, and Plaintiff does not otherwise

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support, his contention that he is entitled to an order granting a mistrial and compelling

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Martin O’Malley and Mark Ghaly to “immediately pay a start retainer of $20,000 to cover

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the cost of the Ward Plaintiff’s legal counsel who will be paid a court-approved hourly,

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service fee, plus costs, as supervised by the court[.]” Id. at 24. Instead, as far as the Court

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can ascertain, Plaintiff’s Motion reasserts the same arguments from his prior motions for

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counsel in that he is not able to adequately represent himself because he lacks legal training

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and suffers from disabilities.

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There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc.

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Servs., 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), district courts have some

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limited discretion to “request” that an attorney represent an indigent civil litigant, which

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may only be exercised in “exceptional circumstances.” Agyeman v. Corr. Corp. of Am.,
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23-CV-481 JLS (AHG)

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390 F.3d 1101, 1103 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017

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

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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability

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to articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman,

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390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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“Neither of these issues is dispositive and both must be viewed together before reaching a

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decision.” Terrell, 935 F.2d at 1017.

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Here, all but one claim in Plaintiff’s SAC have been dismissed without prejudice

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and without leave to amend. See ECF No. 51. While the Court found Plaintiff sufficiently

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pled a § 405(g) claim, the Court notes the main substantive motions at issue, Plaintiff’s

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Motion for Bifurcation (ECF No. 63) and Defendant Martin O’Malley’s Motion to Remand

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(ECF No. 61), are not particularly complex and have already been briefed by Plaintiff.

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Accordingly, the Court does not find exceptional circumstances require appointment of

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counsel.

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The Court understands Plaintiff’s request for a stay to be a request to halt

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proceedings until this Motion is granted and subsequent orders provide him with counsel.

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However, as this instant Motion with respect to Plaintiff’s request for appointment of

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counsel is DENIED as explained above, the Court DENIES AS MOOT Plaintiff’s request

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for stay. Accordingly, Plaintiff’s Ex Parte Emergency Motion is DENIED.

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IT IS SO ORDERED.
Dated: August 29, 2024

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23-CV-481 JLS (AHG)