United States District Court, S.D. California
ORDER DENYING MOTION TO APPOINT COUNSEL
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's motion for appointment of
counsel. ECF No. 3. Plaintiff filed a complaint seeking
review of the denial of social security benefits, along with
a request to proceed in forma pauperis. ECF No. 1-2.
The District Judge granted Plaintiff's request to proceed
in forma pauperis, and referred the remaining
motions to the undersigned. ECF No. 4.
states that despite diligent efforts to obtain counsel, he
has “been unsuccessful because of my poverty.”
ECF No. 3 at 1. He also argues appointment of counsel is
appropriate because he has no legal training or knowledge of
proper legal proceedings. Id. at 3. Plaintiff argues
that physical and mental impairments make it more difficult
for him to litigate, but also that he is “resourceful
and analytical with advanced computer skills.”
Id. Finally, Plaintiff references another case he is
litigating and requests counsel for that case as well.
Id., see 3:17-cv-2227-LAB-KSC.
is no absolute right to counsel in civil proceedings.”
Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363
(9th Cir. 1994) (citation omitted). In pro se and
in forma pauperis proceedings, district courts do
not have the authority “to make coercive appointments
of counsel.” Mallard v. United States District
Court, 490 U.S. 296, 310 (1989). But they do have
discretion to request that an attorney represent indigent
civil litigants upon a showing of “exceptional
circumstances.” 28 U.S.C. § 1915(e)(1);
Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004).
exceptional circumstances entails “an evaluation of
both the ‘likelihood of success on the merits and the
ability of the plaintiff 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.” Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991), quoting Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986).
Plaintiff fails to satisfy either factor of the
Likelihood of Success on the Merits
has not established a likelihood of success on the merits.
Plaintiff's motion for appointment of counsel does not
address likelihood of success and offers no evidence. A
plaintiff that provides no evidence of his likelihood of
success at trial fails to satisfy the first factor of the
Wilborn test. Bailey v. Lawford, 835
F.Supp. 550, 552 (S.D. Cal. 1993); see also, Bailey v.
Lawford, 835 F.Supp. 550, 552 (S.D. Cal. 1993)
(concluding likelihood of success not shown where the
plaintiff did not present any evidence other than his own
assertions to support his claims). Without any evidence
supporting a likelihood of success on the merits, Plaintiff
has not satisfied the first Wilborn factor.
Plaintiffs Ability to Articulate His Claims
a pro se civil rights plaintiff shows he has a good
grasp of basic litigation procedure and has been able to
adequately articulate his claims, he does not demonstrate
exceptional circumstances to warrant appointing counsel.
See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009); see also, Jackson v. Soc. Sec.
Administration, C 10-02578 JW, 2011 WL 13142636, at *2
(N.D. Cal. July 6, 2011) (denying appointment of counsel
without a showing of exceptional circumstances); Smith v.
Cook, 17-CV-00961-AJB-WVG, 2018 WL 1913833, at *1-2
(S.D. Cal. Apr. 20, 2018) (same). The Court has reviewed
Plaintiffs Complaint and other pleadings and finds that the
issues he raises are not complex. The Court understands
Plaintiffs claims and the relief sought, and the District
Judge determined the claims were articulated sufficiently to
survive sua sponte review under 28 U.S.C. §
1915(e). Plaintiff has demonstrated he has a good grasp on
litigation procedure, as evidenced by his pleadings and
ongoing litigation of another case in this court.
has not demonstrated that the circumstances of discovery in
this case rise to the level of exceptional circumstances
warranting appointment of counsel. See also,
3:17-cv-2227-LAB-KSC, ECF Nos. 6, 18 (each denying request
based on lack of exceptional circumstances warranting
appointment of counsel).
second Wilborn factor is not satisfied.