United States District Court, S.D. California
ORDER: (1) GRANTING MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS; (2) DENYING MOTION TO APPOINT COUNSEL [ECF
NOS. 7, 8]
Nita L. Stormes United States Magistrate Judge.
the Court is Plaintiff Victoria Escobedo's amended
complaint seeking judicial review of the Social Security
Administration's decision, a motion for leave to proceed
in forma pauperis (“IFP”), and a motion
for appointment of counsel. ECF Nos. 6-8. On July 18, 2019,
District Judge Larry A. Burns referred this matter to
Magistrate Judge Stormes on all matters, including the motion
to proceed IFP. ECF No. 9. After due consideration and for
the reasons set forth below, the Court
GRANTS the motion to proceed IFP and
DENIES the motion to appoint counsel.
Motion to Proceed In Forma Pauperis
complaint filed pursuant to the IFP provisions of 28 U.S.C.
§ 1915(a), is subject to a mandatory and sua
sponte review by the Court. Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000). The Court must dismiss the
complaint if it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). “A complaint appealing the
Commissioner's denial of disability benefits must set
forth a brief statement of facts setting forth the reasons
why the Commissioner's decision was wrong.”
Hoagland v. Astrue, No. 1:12cv00973-SMS, 2012 WL
2521753, at *1 (E.D. Cal. June 28, 2012).
Court previously dismissed Plaintiff's first complaint
for failing to meet these pleading requirements. See
ECF Nos. 1, 4. Plaintiff's amended complaint provides
more information, specifically that she complains that
“the Judge that heard my most recent last case did not
considered [sic] all the additional medical records from Dr.
Shafi Khalid, (6-28-17) Dr. Dolores Rodriquez psychologist
(6-28-17) Dr. Samuel Kugel MD psychiatrist.” ECF No. 6
at 2. Construing the amended complaint liberally, the Court
finds that the amended complaint, on its face, appears to
include a brief statement about why the commissioner was
found that Plaintiff's complaint survives screening, the
Court turns to her ability to proceed without payment of the
required fees. It is well-settled that a party need not be
completely destitute to proceed IFP. Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). The determination of indigency falls within the
district court's discretion. See Cal. Men's
Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991)
(noting “Section 1915 typically requires the reviewing
court to exercise its sound discretion in determining whether
the affiant has satisfied the statute's requirement of
indigency”), rev'd on other grounds, 506
U.S. 194 (1993). “An affidavit in support of an IFP
application is sufficient where it alleges that the affiant
cannot pay the court costs and still afford the necessities
of life.” Escobedo v. Applebees, 787 F.3d
1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S.
at 339). At the same time, however, “the same even-
handed care must be employed to assure that federal funds are
not squandered to underwrite, at public expense . . . the
remonstrances of a suitor who is financially able, in whole
or in material part, to pull his own oar.” Temple
v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
Finally, the facts as to the litigant's indigency must be
stated “with some particularity, definiteness and
certainty.” United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981).
Plaintiff states that she does not have a job and has not had
any income of her own for the last year. ECF No. 7 at 1. She
states that her only source of income is a $600 per month
gift allowance she receives from her son. Id. at 1,
5. The only asset she claims is a 1999 Nissan Pathfinder,
with a value of $500. Id. at 3. She claims that her
rent, utilities, food, and other expenses total $630 per
month. Id. at 4-5. Upon review of Plaintiff's
IFP application, the Court finds that Plaintiff has
sufficiently shown that she is unable to pay the fees
associated with commencing this lawsuit. Therefore, the Court
GRANTS Plaintiff's motion to proceed
in forma pauperis.
Motion to Appoint Counsel
Constitution provides no absolute right to the appointment of
counsel in any civil proceeding. Hedges v. Resolution
Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). In
pro se and IFP 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). They may only request
that an attorney represent an indigent civil litigant upon a
showing of “exceptional circumstances.” 28 U.S.C.
§ 1915(e)(1); Agyeman v. Corrections Corp. Of
America, 390 F.3d 1101, 1103 (9th Cir. 2004). An
indigent civil plaintiff who seeks appointment of counsel
must first make a reasonably diligent effort to obtain
counsel before a court may exercise its discretion under
§ 1915(e)(1). Bailey v. Lawford, 835 F.Supp.
550, 552 (S.D. Cal. 1993). Only after that effort to secure
counsel will a court consider whether exceptional
circumstances exist to warrant a request for appointment.
finding of exceptional circumstances “requires 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.” Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986) (internal quotations
omitted). Neither of the Wilborn factors are
dispositive, and they must be viewed together before the
district court reaches its decision. Id.
the Court must DENY Plaintiff's request
for appointment of counsel. Though Plaintiff has established
her indigence as set forth above in the motion to proceed
IFP, she has not made the necessary showing to be appointed
counsel. At the outset, in her application, Plaintiff has not
indicated that she has made any attempt to obtain counsel.
ECF No. 8 at 1-2. In addition, she has not set forth any
argument as to how her case meets the exceptional
circumstances requirement. She has not put forth any argument
or evidence to substantiate a likelihood of success on the
merits of her claim, nor has she explained how the complexity
of her case renders her incapable of articulating her own
claims. Id. at 3.
for the reasons as set forth above, the Court
GRANTS Plaintiff's motion to proceed
in forma pauperis, DENIES
Plaintiff's motion for appointment of counsel, and
ORDERS as follows:
Clerk shall issue a summons as to Plaintiff's Amended
Complaint (ECF No. 6) upon Defendant and shall forward it to
Plaintiff along with a blank U.S. Marshal Form 285. In
addition, the Clerk shall provide Plaintiff with a certified
copy of this Order and a certified copy of her Complaint and
the summons. Upon receipt of this “IFP Package, ”
Plaintiff is directed to complete the Form 285 as completely
and accurately as possible, and to return it to the U.S.
Marshal according to the instructions provided by the Clerk
in the letter accompanying her IFP package. Upon receipt, the
U.S. Marshal shall serve a copy of the complaint and ...