Bailey v. Lawford

835 F. Supp. 550, 93 Daily Journal DAR 14969, 1993 U.S. Dist. LEXIS 15807, 1993 WL 456400
CourtDistrict Court, S.D. California
DecidedOctober 25, 1993
DocketCiv. No. 93-1199-B (BTM)
StatusPublished
Cited by45 cases

This text of 835 F. Supp. 550 (Bailey v. Lawford) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Lawford, 835 F. Supp. 550, 93 Daily Journal DAR 14969, 1993 U.S. Dist. LEXIS 15807, 1993 WL 456400 (S.D. Cal. 1993).

Opinion

ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL

BREWSTER, District Judge.

Plaintiff has filed a “Request for Court Appointed Attorney in Civil Action.” For the following reasons, the court hereby DENIES plaintiffs request.

I. Procedural History

On August 12, 1993, plaintiff filed a complaint for damages and injunctive relief, alleging civil rights causes of action under 42 U.S.C. §§ 1983,1985, and 1986, constitutional violations, and intentional infliction of emotional distress. He also filed a request for appointment of counsel, claiming that he “has repeatedly made efforts to proceed in the court as a pro se, but has continual problems of form and procedure of which he can not over come.” On the same day, plaintiffs application to proceed informa pauperis was granted by the Honorable Judith N. Keep, Chief Judge.

II. Factual Background

Plaintiffs complaint alleges two specific instances involving defendants.1 The first al[551]*551legedly occurred on April 29, 1992. Plaintiff contends that on that day defendants San Diego police officer Scott Lawford and two unknown San Diego police officers attempted to force open plaintiffs Ford van at the Clairemont Mesa Blvd. and Diane Ave. area of San Diego. Defendants allegedly broke into the van and took plaintiffs keys and then began to rock the van back and forth. Plaintiff alleges that he was in the rear enclosed portion of the van and suffered a laceration on his right knee when he fell to the floor as the van rocked. Plaintiff asserts that defendants assaulted him with intent to trespass, threatened bodily harm, brandished a weapon while threatening bodily harm, and threatened to have plaintiffs automobile impounded. Plaintiff also asserts that Scott Lawford harassed, vexed, and provoked an assault upon plaintiff.

The second instance allegedly occurred on July 28, 1992, at 7:30 a.m. Plaintiff alleges that “Three Unknown San Diego Police Officers” arrested plaintiff, demanded his identification and detained his identification card without cause. . Plaintiff claims that he sound-recorded the conversation and that the officers’ badge numbers were # 1860, # 2734, and # 2644.

III. Discussion

A. Legal Requirements for Appointment of Counsel

Under 28 U.S.C. § 1915(a) (1993), a court can authorize the commencement of an action without prepayment of fees. Section (a) states:

Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil —or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor____

Once such a showing of indigence -is made, the court has discretion to appoint counsel under 28 U.S.C. § 1915(d) (1993). Section (d) states:

The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

In this circuit, a plaintiff who has met the requirement of indigence is entitled to appointment of counsel only in exceptional circumstances. Wilbom v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). Under Wilborn, the rule for appointment of counsel is:

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 factors is dispositive and both must be viewed together before reaching a decision on request of counsel under section 1915(d).

Id. (citations omitted).

This circuit has held that plaintiffs are required to show a “reasonably diligent effort” to secure counsel as a prerequisite to obtaining court-appointed counsel pursuant to 42 U.S.C. § 2000e-5(f)(l)(B) in claims of employment discrimination. See Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1319 (9th Cir.1981). In Bradshaw, plaintiff contacted more than ten attorneys, each of whom declined to represent her. The court held that such efforts were “all that may reasonably be expected.” Id. The court said:

All that can be required of plaintiffs under this aspect of the test is that they make what can be considered a reasonably diligent effort under the circumstances to obtain counsel.... She may not be required “to exhaust the legal directory” as a prerequisite to the appointment of counsel.

Id. (citations omitted). It appears that this circuit has not been called upon to decide whether Bradshaw’s requirement of a “reasonably diligent effort” to secure counsel is required under § 1915(d) as well.

[552]*552Comparing Bradshaw, this court sees no reason why plaintiffs requesting appointment of counsel under § 2000e-5(f)(l)(B) should bear a greater burden than plaintiffs requesting counsel under § 1915(d). Although the Ninth Circuit has yet to extend the Bradshaw requirement beyond requests for counsel pursuant to § 2000e-5(f)(l)(B), numerous other circuit courts have established a similar requirement for indigent civil litigants pursuant to § 1915(d). See, e.g., Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992) (requiring reasonable, unsuccessful efforts to retain counsel or an effective preclusion from making such efforts); Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 760 (6th Cir.) (dicta) (requiring consideration of “efforts” to obtain counsel), cert. denied, 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985); Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.1984) (requiring a “good faith” attempt to retain counsel); cf. Ulmer v. Chancellor, 691 F.2d 209

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Bluebook (online)
835 F. Supp. 550, 93 Daily Journal DAR 14969, 1993 U.S. Dist. LEXIS 15807, 1993 WL 456400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-lawford-casd-1993.