Dearinger v. Eli Lilly and Company

W.D. Washington

Dearinger v. Eli Lilly and Company

DecidedDecember 11, 2023

Docket2:21-cv-00060

StatusUnknown

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Dearinger v. Eli Lilly and Company, (W.D. Wash. 2023).

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DAVID J. DEARINGER, et al., CASE NO. C21-0060-JCC 10 Plaintiffs, ORDER 11 v. 12 ELI LILLY AND COMPANY, 13 Defendant. 14

15 This matter comes before the Court on Plaintiff David Dearinger’s motion to appoint 16 counsel (Dkt. No. 63.) Having duly considered the briefing and the relevant record, the Court 17 hereby DENIES the motion for the reasons described below. 18 The appointment of counsel for a pro se litigant in a civil case “is a privilege and not a 19 right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). A court may 20 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)1 but should do so 21 “only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 22 When determining whether exceptional circumstances justify the appointment of counsel, the

23 1 Although courts often refer to motions under 28 U.S.C. § 1915(e)(1) as motions to appoint 24 counsel, the statute does not actually authorize the Court to force a lawyer to take a case. Nor does the Court have staff attorneys standing by to represent pro se litigants. Instead, the Court 25 may only “request” that an attorney represent an indigent litigant. 28 U.S.C. § 1915(e); see also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307 (1989) (holding that § 1915(e) 26 authorizes “courts to ask but not compel lawyers to represent indigent litigants.”) 1 Court considers “the likelihood of success on the merits and the ability of the petitioner to 2 articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 3 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 4 (9th Cir. 1983)). 5 Here, Mr. Dearinger argues that appointment of counsel is necessary for him to hire an 6 expert witness. (Dkt. No. 63.) But this is not a basis, alone, for the Court to appoint counsel. It 7 has adopted a plan for recruiting counsel to represent indigent litigants pro bono, but it only 8 pertains to plaintiffs in “civil rights actions.” See W.D. Wash. General Order 16-20.2 Plaintiff is 9 not putting forward a civil rights claim. (See Dkt. No. 37.) 10 Accordingly, Plaintiff’s motion to appoint counsel (Dkt. No. 63) is DENIED. 11 12 DATED this 11th day of December 2023. A 13 14 15 John C. Coughenour 16 UNITED STATES DISTRICT JUDGE

18 19 20 21 22 23 24 25 2 https://www.wawd.uscourts.gov/sites/wawd/files/GO16-20AmendedProBonoPlan.pdf. 26

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DAVID J. DEARINGER, et al., CASE NO. C21-0060-JCC 10 Plaintiffs, ORDER 11 v. 12 ELI LILLY AND COMPANY, 13 Defendant. 14

15 This matter comes before the Court on Plaintiff David Dearinger’s motion to appoint 16 counsel (Dkt. No. 63.) Having duly considered the briefing and the relevant record, the Court 17 hereby DENIES the motion for the reasons described below. 18 The appointment of counsel for a pro se litigant in a civil case “is a privilege and not a 19 right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). A court may 20 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1)1 but should do so 21 “only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 22 When determining whether exceptional circumstances justify the appointment of counsel, the

23 1 Although courts often refer to motions under 28 U.S.C. § 1915(e)(1) as motions to appoint 24 counsel, the statute does not actually authorize the Court to force a lawyer to take a case. Nor does the Court have staff attorneys standing by to represent pro se litigants. Instead, the Court 25 may only “request” that an attorney represent an indigent litigant. 28 U.S.C. § 1915(e); see also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307 (1989) (holding that § 1915(e) 26 authorizes “courts to ask but not compel lawyers to represent indigent litigants.”) 1 Court considers “the likelihood of success on the merits and the ability of the petitioner to 2 articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 3 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 4 (9th Cir. 1983)). 5 Here, Mr. Dearinger argues that appointment of counsel is necessary for him to hire an 6 expert witness. (Dkt. No. 63.) But this is not a basis, alone, for the Court to appoint counsel. It 7 has adopted a plan for recruiting counsel to represent indigent litigants pro bono, but it only 8 pertains to plaintiffs in “civil rights actions.” See W.D. Wash. General Order 16-20.2 Plaintiff is 9 not putting forward a civil rights claim. (See Dkt. No. 37.) 10 Accordingly, Plaintiff’s motion to appoint counsel (Dkt. No. 63) is DENIED. 11 12 DATED this 11th day of December 2023. A 13 14 15 John C. Coughenour 16 UNITED STATES DISTRICT JUDGE

18 19 20 21 22 23 24 25 2 https://www.wawd.uscourts.gov/sites/wawd/files/GO16-20AmendedProBonoPlan.pdf. 26

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