1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES JOHNSON, Case No.: 23-CV-481 JLS (AHG)
12 Plaintiff, ORDER (1) DENYING EX PARTE 13 v. MOTION FOR APPOINTMENT OF COUNSEL, AND (2) GRANTING EX 14 KILOLO KIJAKAZI, Acting PARTE MOTION REQUESTING Commissioner, Social Security 15 TIME EXTENSION FOR SECOND Administration; and DOES 1 to 100, AMENDED COMPLAINT 16 Defendants. 17 (ECF Nos. 42–44).
19 Presently before the Court are Plaintiff James Johnson’s renewed Ex Parte Motion 20 for Appointment of Experienced and Discipline-Qualified Legal Counsel (“Renewed 21 Counsel Mot.,” ECF No. 42); Ex Parte Motion Requesting Time Extension for Second 22 Amended Complaint (“Mot. to Extend,” ECF No. 43); and Notice of Correction Regarding 23 the Motion to Extend (“Notice,” ECF No. 44). Having carefully considered Plaintiff’s 24 submissions and the law, the Court DENIES Plaintiff’s Renewed Counsel Motion and 25 GRANTS Plaintiff’s Motion to Extend. 26 BACKGROUND 27 The Court incorporates the recitation of this action’s factual and procedural 28 background provided in its September 7, 2023 Order (the “Order,” ECF No. 32), and thus 1 sets forth below only those facts relevant to the instant Motions. 2 Plaintiff, proceeding pro se, initiated this action against Defendant Kilolo Kijakazi, 3 Acting Commissioner of the Social Security Administration (“SSA”), on March 16, 2023. 4 See ECF No. 1. Plaintiff moved for leave to proceed in forma pauperis (“IFP”) and for the 5 appointment of counsel the same day. See ECF Nos. 2–3. Plaintiff then filed his First 6 Amended Complaint (“FAC,” ECF No. 23) on May 31. 7 On September 7, this Court granted Plaintiff’s Motion to Proceed IFP but dismissed 8 the FAC without prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to comply with 9 Federal Rule of Civil Procedure 8. See generally Order. At the same time, Plaintiff was 10 granted sixty days to file a second amended complaint. See id. at 22. Plaintiff later filed a 11 request to extend that deadline, see ECF No. 40, which the Court granted, see ECF No. 41. 12 In the September 7 Order, the Court also denied without prejudice Plaintiff’s original 13 Request for Appointment of Counsel (“First Counsel Mot.,” ECF No. 3). See Order at 4–5. 14 The Court found that neither the interests of justice nor exceptional circumstances 15 warranted the appointment of counsel, as Plaintiff had adequately litigated his case up to 16 that point, the case was still in its infancy, and the Court was unable to determine how 17 likely Plaintiff was to succeed on the merits of his claims. Id. at 5. 18 On September 22, Plaintiff asked the Court to reconsider its denial of Plaintiff’s First 19 Counsel Motion. See ECF No. 34 (“Counsel Recons. Mot.”). The Court denied that 20 request on October 16, finding that Plaintiff had not raised any grounds upon which 21 reconsideration could be granted. See ECF No. 39 (“Order Denying Recons.”) at 6–8. 22 The instant Motions followed. 23 RENEWED COUNSEL MOTION 24 I. Legal Standard 25 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 26 Servs., 452 U.S. 18, 25 (1981). Rather, the appointment of counsel in a civil case “is a 27 privilege and not a right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 28 (9th Cir. 1965) (citing Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962)). Under 28 U.S.C. 1 § 1915(e)(1), district courts have some limited discretion to “request” that an attorney 2 represent an indigent civil litigant. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 3 (9th Cir. 2004). This discretion may be exercised only in “exceptional circumstances.” 4 Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of 5 exceptional circumstances requires “an evaluation of the likelihood of the plaintiff’s 6 success on the merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in 7 light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 8 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these issues is 9 dispositive and both must be viewed together before reaching a decision.” Terrell, 10 935 F.2d at 1017. 11 II. Discussion 12 As noted above, this is not the first time Plaintiff has sought the appointment of 13 counsel. The Court denied Plaintiff’s First Counsel Motion because Plaintiff had not 14 shown a likelihood of success on the merits—the case was in its infancy and the FAC had 15 been dismissed. See Order at 5. The Court also found that the legal issues presented were 16 not particularly complex. See id. Said denial was, however, without prejudice. The Court 17 informed Plaintiff that, “[s]hould circumstances change, [he] may be permitted to file 18 another motion for appointment of counsel.” Id. But circumstances had not changed by 19 the time Plaintiff filed his Counsel Reconsideration Motion, which the Court denied 20 because it was based on the same arguments that Plaintiff asserted in his First Counsel 21 Motion. See Order Denying Recons. at 8 (explaining that a “motion for reconsideration 22 cannot be granted merely because Plaintiff is unhappy with the judgment, frustrated by the 23 Court’s application of the facts to binding precedent, or because he disagrees with the 24 ultimate decision” (citation omitted)). 25 Here, Plaintiff relies on the same argument that failed him twice before. Plaintiff 26 contends that he requires the help of counsel due to his disabilities. Plaintiff made—and 27 the Court rejected—that claim in his earlier motions. See Order at 4; Order Denying 28 Recons. at 7. Plaintiff citations to various constitutional and statutory provisions do not 1 dictate a different outcome here. The Court understands that pro se litigants face 2 significant obstacles in pursuing their claims, and that those obstacles are compounded 3 where a litigant has disabilities “that inhibit[] his or her ability to understand or participate 4 in the proceedings fully. Nevertheless, the law does not provide for the right to counsel in 5 civil cases for pro se litigants.” Boyer v. Becerra, No. 17-CV-06063-YGR, 6 2018 WL 2041995, at *7 (N.D. Cal. Apr. 30, 2018) (citation omitted and emphasis added). 7 And while the Court is mindful of the challenges before Plaintiff, those challenges do not 8 on their own constitute “exceptional circumstances” warranting the appointment of 9 counsel. See, e.g., id.; Baptiste v. Hatton, No. 19-CV-06551-HSG, 2019 WL 5788384, 10 at *5 (N.D. Cal. Nov. 6, 2019); Ward v. Pascual, No. 3:23-CV-1423-BAS-AHG, 11 2023 WL 7029216, at *6 (S.D. Cal. Oct. 25, 2023). 12 Meanwhile, the circumstances of this case remain unchanged. The Court previously 13 dismissed Plaintiff’s FAC for failure to state a claim, and Plaintiff has yet to file his second 14 amended complaint. See Docket. Plaintiff has thus not shown a likelihood of success on 15 the merits. Further, Plaintiff does not suggest that the legal issues presented in this action 16 have become more complicated since the Court denied his First Counsel Motion.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES JOHNSON, Case No.: 23-CV-481 JLS (AHG)
12 Plaintiff, ORDER (1) DENYING EX PARTE 13 v. MOTION FOR APPOINTMENT OF COUNSEL, AND (2) GRANTING EX 14 KILOLO KIJAKAZI, Acting PARTE MOTION REQUESTING Commissioner, Social Security 15 TIME EXTENSION FOR SECOND Administration; and DOES 1 to 100, AMENDED COMPLAINT 16 Defendants. 17 (ECF Nos. 42–44).
19 Presently before the Court are Plaintiff James Johnson’s renewed Ex Parte Motion 20 for Appointment of Experienced and Discipline-Qualified Legal Counsel (“Renewed 21 Counsel Mot.,” ECF No. 42); Ex Parte Motion Requesting Time Extension for Second 22 Amended Complaint (“Mot. to Extend,” ECF No. 43); and Notice of Correction Regarding 23 the Motion to Extend (“Notice,” ECF No. 44). Having carefully considered Plaintiff’s 24 submissions and the law, the Court DENIES Plaintiff’s Renewed Counsel Motion and 25 GRANTS Plaintiff’s Motion to Extend. 26 BACKGROUND 27 The Court incorporates the recitation of this action’s factual and procedural 28 background provided in its September 7, 2023 Order (the “Order,” ECF No. 32), and thus 1 sets forth below only those facts relevant to the instant Motions. 2 Plaintiff, proceeding pro se, initiated this action against Defendant Kilolo Kijakazi, 3 Acting Commissioner of the Social Security Administration (“SSA”), on March 16, 2023. 4 See ECF No. 1. Plaintiff moved for leave to proceed in forma pauperis (“IFP”) and for the 5 appointment of counsel the same day. See ECF Nos. 2–3. Plaintiff then filed his First 6 Amended Complaint (“FAC,” ECF No. 23) on May 31. 7 On September 7, this Court granted Plaintiff’s Motion to Proceed IFP but dismissed 8 the FAC without prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to comply with 9 Federal Rule of Civil Procedure 8. See generally Order. At the same time, Plaintiff was 10 granted sixty days to file a second amended complaint. See id. at 22. Plaintiff later filed a 11 request to extend that deadline, see ECF No. 40, which the Court granted, see ECF No. 41. 12 In the September 7 Order, the Court also denied without prejudice Plaintiff’s original 13 Request for Appointment of Counsel (“First Counsel Mot.,” ECF No. 3). See Order at 4–5. 14 The Court found that neither the interests of justice nor exceptional circumstances 15 warranted the appointment of counsel, as Plaintiff had adequately litigated his case up to 16 that point, the case was still in its infancy, and the Court was unable to determine how 17 likely Plaintiff was to succeed on the merits of his claims. Id. at 5. 18 On September 22, Plaintiff asked the Court to reconsider its denial of Plaintiff’s First 19 Counsel Motion. See ECF No. 34 (“Counsel Recons. Mot.”). The Court denied that 20 request on October 16, finding that Plaintiff had not raised any grounds upon which 21 reconsideration could be granted. See ECF No. 39 (“Order Denying Recons.”) at 6–8. 22 The instant Motions followed. 23 RENEWED COUNSEL MOTION 24 I. Legal Standard 25 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 26 Servs., 452 U.S. 18, 25 (1981). Rather, the appointment of counsel in a civil case “is a 27 privilege and not a right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 28 (9th Cir. 1965) (citing Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962)). Under 28 U.S.C. 1 § 1915(e)(1), district courts have some limited discretion to “request” that an attorney 2 represent an indigent civil litigant. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 3 (9th Cir. 2004). This discretion may be exercised only in “exceptional circumstances.” 4 Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of 5 exceptional circumstances requires “an evaluation of the likelihood of the plaintiff’s 6 success on the merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in 7 light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 8 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these issues is 9 dispositive and both must be viewed together before reaching a decision.” Terrell, 10 935 F.2d at 1017. 11 II. Discussion 12 As noted above, this is not the first time Plaintiff has sought the appointment of 13 counsel. The Court denied Plaintiff’s First Counsel Motion because Plaintiff had not 14 shown a likelihood of success on the merits—the case was in its infancy and the FAC had 15 been dismissed. See Order at 5. The Court also found that the legal issues presented were 16 not particularly complex. See id. Said denial was, however, without prejudice. The Court 17 informed Plaintiff that, “[s]hould circumstances change, [he] may be permitted to file 18 another motion for appointment of counsel.” Id. But circumstances had not changed by 19 the time Plaintiff filed his Counsel Reconsideration Motion, which the Court denied 20 because it was based on the same arguments that Plaintiff asserted in his First Counsel 21 Motion. See Order Denying Recons. at 8 (explaining that a “motion for reconsideration 22 cannot be granted merely because Plaintiff is unhappy with the judgment, frustrated by the 23 Court’s application of the facts to binding precedent, or because he disagrees with the 24 ultimate decision” (citation omitted)). 25 Here, Plaintiff relies on the same argument that failed him twice before. Plaintiff 26 contends that he requires the help of counsel due to his disabilities. Plaintiff made—and 27 the Court rejected—that claim in his earlier motions. See Order at 4; Order Denying 28 Recons. at 7. Plaintiff citations to various constitutional and statutory provisions do not 1 dictate a different outcome here. The Court understands that pro se litigants face 2 significant obstacles in pursuing their claims, and that those obstacles are compounded 3 where a litigant has disabilities “that inhibit[] his or her ability to understand or participate 4 in the proceedings fully. Nevertheless, the law does not provide for the right to counsel in 5 civil cases for pro se litigants.” Boyer v. Becerra, No. 17-CV-06063-YGR, 6 2018 WL 2041995, at *7 (N.D. Cal. Apr. 30, 2018) (citation omitted and emphasis added). 7 And while the Court is mindful of the challenges before Plaintiff, those challenges do not 8 on their own constitute “exceptional circumstances” warranting the appointment of 9 counsel. See, e.g., id.; Baptiste v. Hatton, No. 19-CV-06551-HSG, 2019 WL 5788384, 10 at *5 (N.D. Cal. Nov. 6, 2019); Ward v. Pascual, No. 3:23-CV-1423-BAS-AHG, 11 2023 WL 7029216, at *6 (S.D. Cal. Oct. 25, 2023). 12 Meanwhile, the circumstances of this case remain unchanged. The Court previously 13 dismissed Plaintiff’s FAC for failure to state a claim, and Plaintiff has yet to file his second 14 amended complaint. See Docket. Plaintiff has thus not shown a likelihood of success on 15 the merits. Further, Plaintiff does not suggest that the legal issues presented in this action 16 have become more complicated since the Court denied his First Counsel Motion. And as 17 Plaintiff’s recent filings show that he remains “capable of legibly articulating the facts and 18 circumstances relevant to his claims,” Ward v. Pascual, 2023 WL 7029216, at *6, Plaintiff 19 has continued to adequately litigate this case. The Court therefore comes to the same 20 conclusion it reached twice before and finds that neither the interests of justice nor 21 exceptional circumstances warrant appointment of counsel at this time. Plaintiff’s 22 Renewed Counsel Motion is DENIED. 23 MOTION TO EXTEND 24 The Court previously gave Plaintiff until January 9, 2024, to file his second amended 25 complaint. See ECF No. 41 at 2. Plaintiff now seeks to extend that deadline to March 12. 26
27 1 At various points, Plaintiff invokes the Eighth Amendment’s prohibition on cruel and unusual 28 punishment, Renewed Counsel Mot. at 4–6; the Thirteenth Amendment, id. at 7–9; the Due Process and 1 Mot. to Extend at 2; Notice at 2.2, Under Federal Rule of Procedure 6(b), the Court 2 ||may, “for good cause,” extend a filing deadline if a request to that effect is made “before 3 ||the original time or its extension expires.” Fed. R. Civ. P. 6(b)(1)(A). Here, Plaintiff 4 ||explains that his disabilities interfere with his efforts to timely respond to the Court’s 5 ||orders. See id. at 3. So, Plaintiff states, he cannot meet the January 9 deadline even though 6 || he has made progress on drafting the second amended complaint. See id. at 4. 7 The Court finds that Plaintiff has sufficiently demonstrated good cause to warrant 8 additional extension. Cf. Matasareanu v. Williams, 183 F.R.D. 242, 246 (C.D. Cal. 9 || 1998) (noting, in the context of Federal Rule of Civil Procedure 4, that “[i]ll health □ □ . may 10 constitute good cause’). Plaintiff's Motion to Extend is thus GRANTED. 11 CONCLUSION 12 In light of the foregoing, the Court DENIES Plaintiff's Renewed Counsel Motion 13 || (ECF No. 42) and GRANTS Plaintiff's Motion to Extend (ECF No. 43). Plaintiff SHALL 14 || FILE a second amended complaint on or before March 12, 2024. Should Plaintiff fail to 15 || file his second amended complaint by that date, the Court will enter a final Order 16 || dismissing this civil action based both on Plaintiff's failure to state a claim pursuant to 17 ||28 U.S.C. § 1915(e)(2) and his failure to prosecute in compliance with a court order 18 ||requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 19 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court 20 convert the dismissal of the complaint into dismissal of the entire action.”). 21 IT IS SO ORDERED. 22 ||Dated: January 3, 2024 (een 3 on. Janis L. Sammartino United States District Judge 24 25 26 27 28 Citations to the Notice refer to the blue CM/ECE page numbers stamped across the top of each page.