United States District Court, S.D. California
ORDER: (1) DENYING PLAINTIFF'S MOTION FOR
APPOINTMENT OF COUNSEL; AND (2) DENYING AS MOOT
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc.
Nos. 9, 10)
Anthony J Battaglia United States District Judge
before the Court are two motions from Plaintiff Carol Smith
("Plaintiff). Based on the reasoning below, the Court
DENIES Plaintiffs motion to appoint counsel
and DENIES AS MOOT Plaintiff's motion to
proceed in forma pauperis.
filed her complaint on May 8, 2017, asserting several causes
of action against Defendant Andy Cook
("Defendant"). (Doc. No. 1.) From what the Court
can discern, Plaintiff contends that Defendant failed to
adequately represent her interests in a child support case.
(Id. at 5.) Specifically, Plaintiff alleges that
Defendant acted fraudulently, charged her fees of over $70,
000.00, and failed to correctly address her claims for
military spousal retirement. (Id.) On the same day,
Plaintiff also filed a motion for leave to proceed in forma
pauperis ("IFP") and a motion to appoint counsel.
(Doc. Nos. 2, 3.) On May 12, 2017, the Court granted
Plaintiff's motion to proceed IFP, sua sponte dismissed
Plaintiffs complaint for failure to state a claim, and denied
as moot her motion to appoint counsel. (Doc. No. 4.) On June
20, 2017, Plaintiff filed her first amended complaint
("FAC"), a second motion for leave to proceed IFP,
and her second motion to appoint counsel. (Doc. Nos. 8, 9,
Constitution provides no right to appointment of counsel in a
civil case unless an indigent "litigant may lose his [or
her] physical liberty if he [or she] loses the
litigation." Lassiter v. Dep 't of Social
Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28
U.S.C. § 1915(e)(1), district courts are granted
discretion to appoint counsel for indigent persons. However,
this discretion may be exercised only under "exceptional
circumstances." Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). "A finding of exceptional
circumstances requires an 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.'
Neither of these issues is dispositive and both must be
viewed together before reaching a decision."
Id. (quoting Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986) (citation omitted)).
motion for appointment of counsel states that she resides in
Beaverton, Oregon, and that Oregon does not provide pro se
clinic services. (Doc. No. 10 at 3.) Plaintiff then requests
a pro bono attorney, or access via the phone to a pro bono
attorney in the federal pro se office. (Id.)
Plaintiff makes no further arguments concerning the
complexity or merits of her case.
reviewed Plaintiff's motion, the Court concludes that no
exceptional circumstances exist to justify appointment of
counsel for Plaintiff at this time. The Court notes that
"any pro se litigant certainly would be better served
with the assistance of counsel." Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
withdrawn in part on other grounds by Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). But a
plaintiff is only entitled to appointed counsel if he or she
can show "that because of the complexity of the claims
[they are] unable to articulate [their] positions."
Rand, 113 F.3d at 1525. Bearing this in mind, the
Court finds that Plaintiff is capable of articulating her
claims and navigating the federal court system as
demonstrated by the filing of her FAC. Moreover, Plaintiffs
arguments that she resides in Oregon with two young children
and must travel to California for court are unfortunately not
reasons to warrant the finding of exceptional circumstances
to support a motion for appointment of counsel. Accordingly,
the Court DENIES Plaintiffs motion to appoint counsel WITHOUT
final note, the Court highlights that pursuant to the
Court's order dated May 12, 2017, Plaintiffs initial
motion to proceed IFP was granted, and her complaint was
dismissed without prejudice. (Doc. No. 4.) The Court then
provided Plaintiff thirty days to file a new amended
complaint and inaccurately instructed Plaintiff to file
another motion for IFP. As a result, on June 20, 2017,
Plaintiff filed a second motion to proceed IFP pursuant to
the Court's instructions. However, the Court clarifies
that as Plaintiffs initial motion for IFP was granted,
Plaintiffs second motion for IFP is DENIED
on the foregoing, Plaintiffs motion for appointment of
counsel is DENIED WITHOUT PREJUDICE, (Doc. No. 10), and
Plaintiffs motion for leave to proceed IFP is
DENIED AS MOOT (Doc No 9)