Nelson v. Housing and Community Development Services of San Diego County

• Court: District Court, S.D. California
• Decided: January 9, 2023
• Docket: 3:22-cv-02044
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BENNETT NELSON, Case No.: 3:22-cv-02044-RBM-DDL

11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION FOR APPOINTMENT OF COUNSEL 13

14 HOUSING AND COMMUNITY DEVELOPMENT SERVICES OF SAN 15 DIEGO, 16 Defendant. [Doc. 2] 17 18 I. INTRODUCTION 19 On December 23, 2022, Plaintiff Bennett Nelson (“Plaintiff”) filed an action against 20 his former employer, Housing and Community Development Services of San Diego 21 (“Defendant”), alleging violations of Title VII of the Civil Rights Act of 1964. (Doc. 1.) 22 Plaintiff states he “was subjected to harassment, FMLA violations, [n]ame calling [and] 23 welfare checks,” which led to him being discharged “without cause.” (Id. at 2.) Also on 24 December 23, 2022, Plaintiff filed a Motion for Appointment of Counsel (“Motion”). 25 (Doc. 2.) For the reasons discussed below, Plaintiff’s Motion is DENIED WITHOUT 26 PREJUDICE. 27 / / / 28 / / / 1 II. DISCUSSION 2 In the Motion, Plaintiff represents that he made diligent efforts to obtain counsel but 3 was unsuccessful. (Id. at 1–2.) Plaintiff states “[d]ue to discrimination, it has been difficult 4 to obtain legal counsel” and “[l]egal costs are very high.” (Id. at 3.) Thus, Plaintiff requests 5 the Court appoint counsel in this matter. (Id. at 1.) 6 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 7 F.3d 965, 970 (9th Cir. 2009); see also Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 8 Cir.1981). “[A]n indigent’s right to appointed counsel . . . exist[s] only where the litigant 9 may lose his physical liberty if he loses the litigation.” Lassiter v. Dep’t. of Soc. Servs., 10 452 U.S. 18, 25 (1981). However, Congress has authorized courts to appoint counsel for 11 indigent litigants under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v. 12 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances 13 requires an evaluation of both ‘the likelihood of success on the merits and the ability of the 14 petitioner to articulate his claims pro se in light of the complexity of the legal issues 15 involved.’” Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 16 (9th Cir. 1986)). Only “rarely” will a federal court find a case to be so complex that it is 17 appropriate to appoint counsel for a civil litigant who faces no loss of liberty in the 18 controversy at hand. See Dotson v. Dr., No. 1:14-CV-00093-LJO, 2014 WL 2208090, at 19 *1 (E.D. Cal. May 28, 2014) (“[c]ounsel is appointed in civil cases only rarely, if 20 exceptional circumstances exist”); United States v. Melluzo, No. CV-09-8197-PCT-MHM, 21 2010 WL 1779644, at *3 (D. Ariz. May 3, 2010); see also Schwartzmiller v. Roberts, No. 22 CIV. 93-1276-FR, 1994 WL 48967, at *3 (D. Or. Feb. 11, 1994), aff’d, 62 F.3d 1425 (9th 23 Cir. 1995). 24 In this case, there is no basis to support a finding of exceptional circumstances such 25 that appointment of counsel would be warranted at this time. First, the Court notes it is 26 difficult to determine Plaintiff’s likelihood of success on the merits at the pleading stage, 27 and Plaintiff has not demonstrated a likelihood of success on the merits of his claims. 28 Second, Plaintiff has not shown that the complexity of the issues involved is sufficient to 1 ||require designation of counsel. See Wilborn, 789 F.2d at 1331 (“[iJf all that was required 2 || to establish successfully the complexity of the relevant issues was a demonstration of the 3 ||need for development of further facts, practically all cases would involve complex legal 4 ||issues”). Third, there is no basis for the Court to conclude Plaintiff lacks the ability to 5 || articulate and prosecute his claims pro se. 6 Finally, the Court acknowledges that pro se litigants are afforded some leniency to 7 || compensate for their lack of legal training. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 8 || (9th Cir. 2013) (“[c]ourts in this circuit have an obligation to give a liberal construction to 9 || the filings of pro se litigants”). Accordingly, the Court will consider Plaintiff's pro se 10 || status when his filings are reviewed. 11 rl. CONCLUSION 12 For the foregoing reasons, Plaintiffs Motion is DENIED WITHOUT 13 || PREJUDICE. 14 IT IS SO ORDERED. 15 Dated: January 9, 2023 16 Fat Bsmude, (eottarygs 7 HON? RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3 oe