United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
the court is plaintiffs' October 1, 2019 motion to
appoint counsel. (ECF No. 31.) On October 8, 2019, the court
took the motion under submission on the briefing without oral
argument, pursuant to Local Rule 230(g). (ECF No. 34.) On
October 16, 2019, defendants filed an opposition (ECF No.
36), and on October 22, 2019 plaintiffs filed their reply
(ECF No. 37).
successful application for appointment of counsel must comply
with criteria set forth in Bradshaw v. Zoological Society
of San Diego, 662 F.2d 1301 (9th Cir. 1981). Before
appointing counsel to plaintiffs, the court must consider (1)
plaintiffs' financial resources, (2) the efforts already
made by plaintiffs to secure counsel, and (3) plaintiffs'
likelihood of success on the merits. Id. at 1318.
Appointment of counsel is not a matter of right. See Ivey
v. Bd. of Regents, 673 F.2d 266 (9th Cir.
1982). Moreover, “counsel may be designated under
section 1915(d) only in ‘exceptional
circumstances'. . . [which] 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.'” Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986) (internal citations omitted).
the Bradshaw factors, because plaintiffs are
proceeding in forma pauperis, the first factor, which relates
to their financial condition, is a fortiori resolved in their
the second Bradshaw factor, plaintiffs do not
provide the efforts they made to obtain counsel, if any.
Plaintiffs only state that “they have tried to contact
numerous attorneys” and “[a]ll of them state that
the lack of ability to pay a retainer is the reason for them
not taking on the Plaintiffs' case.” (ECF No. 31 at
1-2.) However, plaintiffs provided no evidence to support
this conclusory statement. Plaintiffs should make reasonable
efforts to meet with attorneys, and provide a declaration
that complies with 28 U.S.C. § 1746 that documents their
efforts to retain them and why they refused to take their
case. In other words, plaintiffs must provide some form of
evidence supporting their efforts to obtain counsel for the
court to consider their motion. This factor therefore weighs
against granting plaintiffs' motion to appoint counsel.
even if the court were to consider the remaining factors,
plaintiffs' motion fails. As to the third
Bradshaw factor evaluating plaintiffs'
likelihood of success on the merits, plaintiffs argue that
Magistrate Judge Gregory G. Hollows stated they have a
“credible case” and have a “colorable
chance of success.” (ECF No. 31 at 3.) However,
plaintiffs merely continue to rely on the allegations in
their complaint which at best state the bare elements of a
prima facie case, and no more. Plaintiffs offer no further
argument “to the effect that [they have] any requisite
likelihood of success.” Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on
reh'g en banc, 154 F.3d 952 (9th Cir.
1998). Although plaintiffs claim some discovery
difficulties, including having to appear for their
depositions, this does not establish the likelihood of
success on the merits of their case. At this juncture,
following the close of all fact discovery except
plaintiffs' depositions, plaintiffs should be able to
identify the source(s) of evidence that they believe will
allow them to prevail. This factor also weighs against
granting plaintiffs' motion.
to the Wilborn standard, plaintiffs are incorrect
that they have “jumped the ‘exceptional
circumstances' hurdle” on the ground that their
application to proceed in forma pauperis was granted.
(See ECF No. 37 at 2.) The “exceptional
circumstances” standard is met through evaluation of
the likelihood of success on the merits and the ability of
plaintiffs to articulate their claims in light of the
complexity of the legal issues involved. Wilborn,
789 F.2d at 1331 (quoting Weygtandt v. Look, 718
F.2d 952, 954 (9th Cir. 1983)). As noted above, plaintiffs
have not satisfied the requirement that they are likely to
succeed on the merits.
the complexity of the legal issues involved, that plaintiffs
must appear for their depositions is not sufficient grounds
to meet the exceptional circumstances threshold or establish
that this case is complex. See Wilborn, 789 F.2d at
1331 (explaining that “[a]lthough discovery was
essential . . ., the need for such discovery does not
necessarily qualify the issues involved as
‘complex'”). Indeed, if that were the case,
every pro se plaintiff would be entitled to have counsel
appointed given that most litigation cases involve
depositions. Id. (“If all that was required to
establish successfully the complexity of the relevant issues
was a demonstration of the need for development of further
facts, practically all cases would involve complex legal
issues.”); see also Thornton v.
Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at
*7 (S.D. Cal. Jan. 11, 2011) (explaining that
“[f]actual disputes and anticipated cross-examination
of witnesses do not indicate the presence of complex legal
issues warranting a finding of exceptional
circumstances” (citing Rand, 113 F.3d at
1525)). As noted by Judge Hollows,
The concerns plaintiffs have raised may be mitigated by the
acquisition or review of one of the many federal practice
guides regarding procedures before trial available on the
market for purchase or available for study in the State Court
Law Library or the Law Library available in this courthouse
which can be entered at the lobby level of the building.
There is a librarian on duty in the court library who can
assist them in locating the materials they require.
(ECF No. 20 at 2-3.)
plaintiffs have demonstrated that they are more than capable
of articulating their claims and appear to be prosecuting
this matter adequately on their own. In that regard, the
court notes that plaintiffs have worked in the legal field
for at least ten years and are therefore even more capable of
litigating their case pro se compared to other pro se
plaintiffs. SeeAbout Modoc Legal Services,
Modoc Legal Services,
visited Oct. 23, 2019) (stating that Modoc ...