Griffin v. Berryhill

Filing 7

ORDER denying plaintiff's 5 Motion to Appoint Counsel by Judge Richard A Jones.(RS) cc plaintiff

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 HERBERT C. GRIFFIN, Plaintiff, 9 10 v. 11 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 12 Defendant. 13 Case No. C17-308-RAJ ORDER DENYING APPLICATION FOR COURT-APPOINTED COUNSEL 14 Plaintiff, Herbert C. Griffin, proceeds pro se and in forma pauperis in this civil action 15 seeking review of the Commissioner’s denial of Social Security benefits. Dkts. 1, 3, 4. Plaintiff 16 now moves for court-appointed counsel to assist with his appeal. Dkt. 5. For the reasons 17 discussed below, this application is DENIED. 18 There is no absolute right to counsel in a civil action such as this one. See Hedges v. 19 Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Under 28 U.S.C. 1915(e)(1), the 20 Court may appoint counsel for civil litigants “unable to afford counsel”, but may do so only in 21 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting 22 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); 28 U.S.C. 1915(e)(1). In assessing 23 whether “exceptional circumstances” exist, the Court will consider “the likelihood of success on ORDER DENYING APPLICATION FOR COURT-APPOINTED COUNSEL - 1 1 the merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 3 Neither of these factors is dispositive and both must be viewed together before reaching a 4 decision[.]” Wilborn, 789 F.2d at 1331. 5 At this early stage, plaintiff presents insufficient evidence to establish a likelihood of 6 success on the merits. Dkt. 4. In response to the question of whether another agency has 7 “officially determined whether there is reasonable cause to believe the allegations of your 8 complaint are true[,]” the plaintiff alludes to a determination by California Health and Human 9 Services. Dkt. 5. However, plaintiff includes no documentation of that alleged determination 10 and the plaintiff’s mere reference to a determination offers little additional insight into the 11 potential merits of his claims. Id. Moreover, plaintiff does not allege or explain in his motion 12 how or why the complexity of the issues in this case would prevent him from articulating his 13 claims pro se. Dkt. 4. In fact, based on the complaint, plaintiff’s claim appears relatively clearly 14 articulated and to raise fairly straight-forward issues. Id. Specifically, plaintiff indicates that he 15 tore both of his rotator cuffs and was diagnosed with Type II diabetes which caused him to 16 become ill and experience weight loss, blurred vision and body pains. Id. Plaintiff indicates the 17 ALJ overlooked or did not properly consider the medical evidence or the testimony of the 18 vocational expert in reaching her decision. Id. Based on the limited information available thus 19 far in the proceeding, plaintiff appears able to articulate his claims relatively well pro se. 20 Plaintiff, therefore, has not presented exceptional circumstances that would justify appointing 21 counsel at this time. 22 23 ORDER DENYING APPLICATION FOR COURT-APPOINTED COUNSEL - 2 1 For the foregoing reasons, plaintiff’s application for court-appointed counsel (Dkt. 4) is 2 DENIED without prejudice. 3 DATED this 29th day of March, 2017. 4 5 6 7 8 A The Honorable Richard A. Jones United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER DENYING APPLICATION FOR COURT-APPOINTED COUNSEL - 3

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