United States District Court, E.D. California
ERIC W. GREEN, Plaintiff,
DELGADO, et al., Defendants.
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR APPOINTMENT OF COUNSEL AND TO FILE FUTURE FUNDING REQUESTS UNDER SEAL
JENNIFER L. THURSTON, Magistrate Judge.
On March 28, 2015, one of Plaintiff's attorneys, Kevin G. Little, Esq., filed a motion seeking to have himself appointed as counsel for Plaintiff. (Doc. 29.) Defendants filed an opposition. (Doc. 31.) Despite lapse of more than sufficient time, Plaintiff's counsel did not file a reply. The motion is deemed submitted. L.R. 230(l). A number of deficiencies, as discussed below, prohibit granting the motion.
Plaintiff filed this action on March 2, 2014. (Doc. 1.) Plaintiff was not pro se at the filing of the Complaint; rather, it was filed on his behalf by two law offices - that of Kevin G. Little, Esq. and the Law Offices of York & Garvey. ( Id. ) Plaintiff has remained represented by these two law offices during the entire time that this action has been pending. Exactly one year and one month after the filing of this action, Mr. Little filed the present motion. (Doc. 29.)
Mr. Little requests that he be appointed to represent Plaintiff under General Order 230; that he be authorized to incur costs subject to payment or reimbursement thereunder; and that if he is appointed, future request for funding be permitted to be filed under seal. (Doc. 29.) He argues that if future requests for funding are not filed under seal, confidential and protected attorney work product would necessarily be divulged which would prejudice the representation of Plaintiff and likens this to requests for funding under the Criminal Justice Act. ( Id. )
In opposition, Defendants argue that General Order No. 510 superseded General Order 230 in its entirety and since Plaintiff is already represented by retained counsel, it would run afoul of General Order 510 to appoint Mr. Little. (Doc. 31.) Defendants further argue that the improvident fee agreement that Mr. Little indicates he has with Plaintiff does not amount to extraordinary circumstances to warrant appointment of counsel ( id., at 2:17-3:10); that public funds are not authorized by Congress to support litigation expenses of one party ( id., at 3:11-4:4:6); and that the request to submit further requests for reimbursement under seal is procedurally improper ( id., at 4:7-20).
a. Appointment of Counsel
This motion is properly analyzed under General Order 510, which superseded General Order 230 in its entirety as well as General Orders 154, 259, and 377 to the extent they address reimbursement of pro bono counsel for indigent civil litigants. General Order 510 provides for "reimbursement of pro bono counsel appointed in indigent pro se civil cases." Thus, a very basic premise of this general order is that Plaintiff be pro se when appointment of counsel is sought. While Plaintiff applied and made a sufficient showing of indigence to have his application to proceed in forma pauperis granted, Plaintiff clearly is not now proceeding, and has never proceeded pro se in this action.
Further, there is no constitutional right to appointed counsel in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, in "exceptional circumstances, " a district court may, in its discretion, appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(d). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), quoting Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). Exceptional circumstances may be found to exist after evaluation of both "the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Rand, 113 F.3d at 1525 (quotations and citations omitted). This showing has not been met.
Mr. Little asserts that "Defendants have not challenged the legal sufficiency of plaintiff's claims, and this matter appears headed toward trial." (Doc. 29, Decl. of Little, ¶1.) However, the deadline for filing of dispositive motions in this action is still over two months away. Defendants need not challenge plaintiff's claims before that date, and, even if they decide not to file a dispositive motion, there is no basis on the record in this action or presented by Mr. Little to show that Plaintiff is likely to succeed on the merits if and when this action proceeds to trial. Many cases proceed to trial without dispositive motions and result in defense verdicts. Thus, it cannot be said, at this stage in the litigation, that Plaintiff is likely to succeed on the merits. Further, Mr. Little presents neither evidence nor argument from which to ascertain whether this action involves legal issues that are more complex than the hundreds of other actions filed by pro se inmate plaintiffs under § 1983 that are currently pending in this Court to justify appointment. Finally, Mr. Little makes no showing upon which it might be ascertained whether Plaintiff is able to articulate his claims pro se.
In his supporting declaration, Mr. Little asserts that the terms of his fee agreement with Plaintiff show that this case is not the type that private attorneys in the area ordinarily accept without a prepaid fee. (Doc. 29, at ¶7.) In so asserting, Mr. Little discloses that his fee agreement with Plaintiff "contemplates a statutory fee rather than a conventional contingency agreement and that plaintiff(s) will receive any recovery awarded without reduction." ( Id. ) The Court does not doubt that not many attorneys would enter into a fee agreement wherein the client would receive any recovery awarded without reduction. However, Mr. Little cites no legal authority to support that his fee agreement with Plaintiff is the only form allowed in this type of action, or even that it is commonly utilized by the legal community when representing an indigent inmate plaintiff in actions under § 1983 and the Court finds none.
Mr. Little's request to be appointed as Plaintiff's counsel under General Order 510, after more than a year of representation, must fail as Plaintiff has not been pro se for any of this action, Further, Mr. Little fails to show that exceptional ...