The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: (1) DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL; [Doc. No. 27] (2) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT SOCIAL SECURITY ADMINISTRATION; PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) ,
Plaintiff Gilberto G. Muñoz, proceeding pro se, filed a Complaint in the above-captioned disability discrimination and tort case. Currently before the Court are Defendants Social Security Administration, Michael J. Astrue, Jose Garnica, Dwight Williams, and Blanca Barbosa's (hereinafter "Defendants") Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction [Doc. Nos. 25-1 & 30]. Defendants also seek dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted [Id.]. Defendants ask the Court to dismiss all but one Defendant, the Commissioner of Social Security, in the disability discrimination claims. Defendants also ask the Court to dismiss all tort claims. Plaintiff opposes the motion [Doc. No. 29]. Defendants filed a reply [Doc. No. 30]. Additionally, Plaintiff submitted a request for appointment of counsel [Doc. No. 27]. For the following reasons, the Court DENIES WITHOUT PREJUDICE Plaintiff's Request for Appointment of Counsel and GRANTS Defendants' Motion to Dismiss.
On May 11, 2010, Plaintiff filed a pro se complaint alleging Defendants discriminated against him on the basis of his disability and also alleging Defendants intentionally and negligently caused him emotional distress. Plaintiff thereafter filed a series of requests for appointment of counsel, which the Court denied without prejudice. Plaintiff also filed a request seeking default judgments against Defendants, which the Court clerk determined was not warranted. On September 27, 2010, Defendants filed the instant motion to dismiss. On November 19, 2010, the Court found the motion suitable for decision based on the papers submitted without oral argument and took the matter under submission, pursuant to Civil Local Rule 7.1.d.1. The Court also deferred ruling on Plaintiff's Request for Appointment of Counsel until after the parties submitted their respective briefs on Defendants' Motion to Dismiss.
The following factual allegations are taken from Plaintiff's Complaint. On or about April 2008, Plaintiff was employed by the Social Security Administration ("SSA") at the Chula Vista District Office in San Diego, California. Between November 2008 and March 2009, Plaintiff received medical services on or about a weekly basis during regular work hours. In order to attend his medical appointments, Plaintiff met with Defendants Blanca Barbosa and Dwight Williams on different occasions regarding requests for medical leave. On separate occasions, Defendants Blanca Barbosa and Dwight Williams informed Plaintiff that pursuant to SSA policy, state employees who request medical leave must have a medical certificate stating the diagnosis or medical condition of the employee. Plaintiff offered to prove that he was seeking medical attention at Sharp Rees-Stealy medical center, but refused to disclose his diagnosis to Defendants. Thereafter, Plaintiff was denied medical leave several times on different occasions by Defendants Barbosa, Williams, and Garnica. On or about March 30, 2009, Plaintiff was terminated from his position at the SSA.
Some time between April and June 2009, Plaintiff filed a formal complaint with the SSA and was assigned Agency Case No. SF-09-0504. Subsequently, Plaintiff filed a formal complaint with the Equal Employment Opportunity Commission.
II.REQUEST FOR APPOINTMENT OF COUNSEL
A district court must rule on a plaintiff's motion for appointment of counsel before granting a defendant's motion to dismiss the complaint. Johnson v. U.S. Dept. of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). The district court should determine "if counsel would aid [the court's] resolution before disposing the case on its merits." Id. at 825.
Because there is no constitutional right to appointment of counsel in employment discrimination cases, the Civil Rights Act of 1964 gives district courts the discretion to appoint counsel "in such circumstances as the court may deem just." 42. U.S.C. § 2000e-5(f)(1)(B); see Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).In exercising this discretion, the court must assess three factors: (1) the plaintiff's financial resources, (2) the plaintiff's efforts in securing counsel, and (3) whether the plaintiff's claim has merit. Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981).
Plaintiff brings a request for appointment of counsel under the Civil Rights Act of 1964, 42 U.S.C. section 2000e-5(f)(1)(B). For the reasons set forth below, the Court finds appointment of counsel is not warranted.
The second factor weighs most heavily against granting Plaintiff's request for appointment of counsel. While the prerequisite to the appointment of counsel does not require a plaintiff to exhaust the legal directory, a plaintiff is required to conduct a diligent search for an attorney.See Bradshaw, 662 F. 2d at 1319. In Bradshaw v. Zoological Society of San Diego, the Ninth Circuit found the plaintiff in the case satisfied the requisite degree of diligence in her efforts to find an attorney because she had contacted over ten attorneys, all of whom denied to represent her. Id. Additionally, upon finding the plaintiff did not act diligently in his efforts in obtaining counsel, the court in Gillins v. Marten Transport noted that there was "no indication in Plaintiff's application that he ever attempted to explore obtaining counsel on a contingency basis." Gillins v. Marten Transport, 2007 WL 2994757 *2 (S.D. Cal. 2007). Here, without much detail, Plaintiff names only three attorneys he has contacted over the telephone about handling his claim. [Doc. No. 27.] Although Plaintiff claims he contacted two additional attorneys by telephone, Plaintiff cannot provide their contract information. The Court finds that Plaintiff's efforts of contacting a few attorneys by telephone do not equate to a diligent effort in obtaining counsel. The appointment of counsel provision is a "last resort to prospective plaintiffs who cannot otherwise secure representation" and "not a mechanism by which any plaintiff may simply guarantee costs to his preferred choice of counsel." Gonzales v. Postmaster General of U.S., 682 F. Supp. 40, 41 (N.D. Cal. 1988). Plaintiff should continue to search for an attorney and attempt to explore obtaining an attorney on a contingency basis. Accordingly, the Court finds that Plaintiff's efforts in securing counsel heavily weighs against granting the request for appointment of counsel.
With respect to the first factor, Plaintiff's financial situation does not weigh in favor of granting the request for appointment of counsel. As an initial matter, when Plaintiff filed his Complaint, he did not apply to proceed in forma pauperis, and paid the filing fee in full. [Doc. No.1.] Although proceeding in forma pauperis is not a prerequisite to satisfying the first factor, in forma pauperis status strongly suggests an indigent plaintiff. Further, upon inspection of Plaintiff's financial situation detailed in his requests for appointment of counsel, Plaintiff shows that even though he is unemployed, Plaintiff still receives income from rental property and unemployment benefits. [Doc. Nos. ...