United States District Court, E.D. California
ORDER (ECF NOS. 16, 17)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Presently
pending before the court is pro se plaintiff's renewed
motion to appoint counsel. (ECF No. 17.) Plaintiff also
requests that counsel appear on his behalf for the initial
scheduling conference set before the court on December 5,
2019. (ECF No. 18). Finally, plaintiff requests he be re-sent
documents necessary for him to effectuate service.
(Id.)
For the
reasons stated below, the court:
(I) DENIES plaintiff's motion to appoint counsel;
(II) ORDERS the Clerk of the Court to forward plaintiff the
documents he has requested, and
(III) ORDERS the hearing currently scheduled on December 5,
2019, to be vacated.
I.
Motion to Appoint Counsel
The
court denied plaintiff's prior motion to appoint counsel
because “plaintiff ma[de] no showing regarding his
efforts to secure counsel. Rather, plaintiff simply
request[ed] the court appoint him counsel so that he may
‘prepare a proper complaint . . . [and] meet any and
all requirements and time constraints.'” (ECF No. 9
at 2-4.) Denying the motion, the court relied on Bradshaw
v. Zoological Society of San Diego, which directs a
court to consider three factors before appointing counsel to
a pro se plaintiff: (1) plaintiff's financial resources;
(2) the efforts already made by plaintiff to secure counsel;
and (3) plaintiff's likelihood of success on the merits.
662 F.2d 1301, 1318 (9th Cir. 1981). The court also noted
that appointment of counsel is not a matter of right. See
Ivey v. Board of Regents, 673 F.2d 266, 269 (9th Cir.
1982).
In its
previous order, the court inadvertently failed to reference
the standard for appointing counsel under 28 U.S.C. §
1915. In Wilborn v. Escalderon, the Ninth Circuit
Court of Appeals explained that “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.'” 789 F.2d 1328, 1331 (9th Cir. 1986)
(internal citations omitted). Wilborn concerned a
motion for counsel from an indigent civil litigant under 28
U.S.C. § 1915(d) in a “1983 action . . .
alleg[ing] that the defendants had conspired to deprive
Wilborn of his property without due process of law”
when Wilborn's vehicle was impounded and he was prevented
from retrieving property from his vehicle. 789 F.2d at
1330-31.
Similarly,
here, plaintiff proceeds as an indigent civil litigant under
28 U.S.C. § 1915 and requests the appointment of counsel
in a 1983 action, alleging that defendants violated
plaintiff's Fourth Amendment rights by preventing
plaintiff from retrieving property from his vehicle while it
was impounded. (See ECF Nos. 2, 7, 8, 12.)
Bradshaw, on the other hand, concerned a request for
appointment of counsel in the context of an employment
discrimination case brought under the 1964 Civil Rights Act.
662 F.2d 1318. While the Bradshaw standard informs
the court's analysis, the standard in Wilborn is
more appropriate in this case.
The
district court in Wilborn denied the request for
appointment of counsel and the Ninth Circuit affirmed,
explaining:
Wilborn has not demonstrated a likelihood of success on the
merits. In addition, we do not find that any difficulty
Wilborn experienced in attempting to litigate his case
derived from the complexity of the issues involved. Although
discovery was essential in order for Wilborn to learn who had
impounded his vehicle and why, particularly since Cook
allegedly misinformed him, the need for such discovery does
not necessarily qualify the issues involved as
“complex.” Most actions require development of
further facts during litigation and a pro se litigant will
seldom be in a position to investigate easily the facts
necessary to support the case. 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. Thus, although Wilborn may have found it difficult to
articulate his claims pro se, he has neither demonstrated a
likelihood of success on the merits nor shown that the
complexity of the issues involved was sufficient to require
designation of counsel.
Wilborn, 789 F.2d at 1331.
As in
Wilborn, plaintiff has not demonstrated a likelihood
of success on the merits in this case. While “the court
cannot conclude that plaintiff's complaint is frivolous
at this juncture” (ECF No. 9 at 2), the court is
equally unable to conclude that plaintiff is likely to
succeed on his claims. Moreover, there is no indication that
the complexity of the legal issues involved prevents
plaintiff from articulating his claims, as a pro se litigant.
Plaintiff had some initial difficulty articulating his
claims. However, the court twice granted plaintiff leave to
amend and directed service of the second amended complaint.
(See ECF No. 9.) Importantly, the case in
Wilborn was more developed and involved more
complicated situations than the present matter. For example,
in Wilborn, the parties had already engaged in
discovery, 789 F.2d at 1330-31, whereas here defendants have
not even been served. Indeed, plaintiff's next step is to
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