Goetz v. SS Disability

Opinion

1 2 3 4 5 6 7 10 11 Terry H. Goetz, Case No.: 19cv1603-CAB-RBM

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS [Doc. No. 2] AND DENYING 14 SS Disability, WITHOUT PREJUDICE REQUEST 15 Defendant. FOR APPOINTMENT OF COUNSEL [Doc. No. 3] 16

17 Plaintiff, a non-prisoner, proceeding pro se, has filed a complaint based on denial 18 of Plaintiff’s individual application for social security benefits. Plaintiff has not paid the 19 civil filing fee required to commence this action, but rather, has filed a motion to proceed 20 in forma pauperis pursuant to 28 U.S.C. § 1915. [Doc. No. 2.] Plaintiff has also filed a 21 (one-page) Request for Appointment of Counsel. [Doc. No. 3.] 22 A. Motion to Proceed In Forma Pauperis. 23 Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a 24 suit without prepayment of fees if the plaintiff submits an affidavit, including a statement 25 of all his or her assets, showing that he or she is unable to pay filing fees. Plaintiff has 26 submitted an affidavit that sufficiently shows Plaintiff lacks the financial resources to pay 27 filing fees. Accordingly, the Court hereby GRANTS Plaintiff’s motion to proceed in 28 forma pauperis and ORDERS as follows: 1 1. The United States Marshal shall serve a copy of the complaint, summons 2 and order granting leave to proceed in forma pauperis upon Defendant as 3 directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be 4 advanced by the United States. 5 2. The Clerk of Court shall provide Plaintiff with a U.S. Marshal Form 285. 6 3, Plaintiff shall serve upon Defendant or, if appearance has been entered by 7 counsel, upon Defendant’s counsel, a copy of every further pleading or other 8 document submitted for consideration of the Court. Plaintiff shall include 9 with the original paper to be filed with the Clerk of the Court a certificate 10 stating the manner in which a true and correct copy of any document was 11 served on Defendant or Defendant’s counsel and the date of service. Any 12 paper received by a District Judge or Magistrate Judge that has not been 13 filed with the Clerk or that fails to include a Certificate of Service will be 14 disregarded. 15 B. Request for Appointment of Counsel. 16 The Constitution provides no absolute right to the appointment of counsel in any 17 civil proceeding. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). 18 In pro se and in forma pauperis (IFP) proceedings, district courts do not have the 19 authority “to make coercive appointments of counsel.” Mallard v. United States District 20 Court, 490 U.S. 296, 310 (1989). But they may request that an attorney represent an 21 indigent civil litigant upon a showing of “exceptional circumstances.” 28 U.S.C. § 22 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103 (9th Cir. 23 2004). An indigent civil plaintiff who seeks appointment of counsel must first make a 24 reasonably diligent effort to obtain counsel before a court may exercise its discretion 25 under § 1915(e)(1). Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993). Only 26 after that effort to secure counsel will a court consider whether exceptional circumstances 27 exist to warrant a request for appointment. Id. 28 A finding of exceptional circumstances “requires an evaluation of both the 1 || likelihood of success on the merits and the ability of the [plaintiff] to articulate his claims 2 se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 3 || 789 F.2d 1328, 1331 (9th Cir. 1986) (internal quotations omitted). Neither of the 4 || Wilborn factors are dispositive, and they must be viewed together before the district court 5 reaches its decision. Id. 6 Here, Plaintiff has filed an incomplete request for appointment of counsel, as it is 7 || only one page and does not have any information about diligent efforts to obtain legal 8 ||counsel, nor any showing of “exceptional circumstances.” [Doc. No. 3.] Therefore, the 9 request for appointment of counsel is DENIED WITHOUT PREJUDICE. 11 | Dated: September 20, 2019 ( é & Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28