1 2 3 4 5 6 7 10 11 MARCELINA PINA, Case No.: 25-CV-386 JLS (SBC)
12 Plaintiff, ORDER (1) DENYING REQUEST 13 v. FOR APPOINTMENT OF COUNSEL AND (2) ORDERING PLAINTIFF TO SHOW CAUSE 15 Defendant. (ECF No. 5) 16 17 Presently before the Court is Plaintiff Marcelina Pina’s Request for Appointment of 18 Counsel (“Req.,” ECF No. 5). Having carefully considered Plaintiff’s Request and the law, 19 the Court DENIES Plaintiff’s Request for the reasons that follow. 21 Plaintiff, who is proceeding pro se, initiated this action on February 21, 2025, by 22 filing a Complaint utilizing this district’s form complaint. See ECF No. 1 (“Compl.”). She 23 appears to raise a claim under 18 U.S.C. § 228, a criminal statute making unlawful failure 24 to pay legal child support obligations when certain conditions are met related to the 25 interstate nature of the unpaid obligation. The Court denied Plaintiff’s Motion for Leave 26 to Proceed in Forma Pauperis, ECF No. 4, and then about one month later, Plaintiff paid 27 the required $405 filing fee, ECF No. 6. She also concurrently filed the instant Request, 28 asking to add the attorney Andre Rios Bollinger to her case. See Req. 2 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 3 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 4 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” United 5 States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 6 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 7 limited discretion to “request” that an attorney represent an indigent civil litigant in 8 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 9 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 10 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 11 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 12 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 13 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 14 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 15 “The decision to request counsel pursuant to § 1915(e)(1) first requires that the 16 plaintiff has been determined eligible to proceed pursuant to the IFP statute due to his 17 indigency.” Moses v. U.S. Dist. Ct. S. Dist. of Cal., No. 15-cv-01793 BEN (RBB), 18 2015 WL 13238665, at *2 (S.D. Cal. Nov. 20, 2015) (citing Agyeman, 390 F.3d at 1103). 19 Although 28 U.S.C. § 1915(a) does not specify the qualifications for proceeding IFP, the 20 plaintiff’s affidavit must allege poverty with some particularity. Escobeda v. Applebees, 21 787 F.3d 1226, 1234 (2015). Granting a plaintiff leave to proceed IFP may be proper, for 22 example, when the affidavit demonstrates that paying court costs will result in a plaintiff’s 23 inability to afford the “necessities of life.” Id. The affidavit, however, need not 24 demonstrate that the plaintiff is destitute. Id. 26 Plaintiff is not proceeding IFP and has failed to file an affidavit alleging that she 27 would be unable to afford the necessities of life if she is to pay court costs. On that ground 28 alone, Plaintiff’s Motion can be denied. But regardless of whether Plaintiff is indigent such 1 that she would be unable to afford both counsel to represent her in this matter as well as 2 the “necessities of life,” Escobeda, 787 F.3d at 1234, the Court finds that Plaintiff has 3 failed to demonstrate exceptional circumstances warranting the appointment of counsel at 4 this time. Plaintiff indicates that she would like appointed counsel to assist her in avoiding 5 future mistakes and taking the correct steps moving forward. Req. at 1. The Court 6 appreciates that concern, but with this case in its infancy—Defendant having yet to appear, 7 much less respond to the Complaint—“it is too early for the Court to determine [Plaintiff]’s 8 likelihood of success on the merits.” Clack v. San Diego Sheriffs Dep’t, 9 No. 08CV0624 IEG (RBB), 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 2009). Nor does 10 Plaintiff assert, and the Court does not find, that the legal issues presented by the case are 11 complex. Indeed, the Court was able to parse the general claim Plaintiff is pursuing and 12 assess its jurisdiction to hear the same. 13 In sum, Plaintiff has adequately litigated the case thus far, the case is still in its 14 infancy, and the Court currently is unable to determine how likely Plaintiff is to succeed 15 on the merits of her claim. For these reasons, neither the interests of justice nor exceptional 16 circumstances warrant appointment of counsel at this time. Accordingly, the Court 17 DENIES Plaintiff’s Request. Should circumstances change, Plaintiff may be permitted to 18 file another motion for appointment of counsel. 19 With respect to jurisdiction, however, the Court has doubts. Plaintiff contends this 20 Court has subject matter jurisdiction over this case under 28 U.S.C. § 1332, Compl. at 3, 21 otherwise known as “diversity jurisdiction.” “Jurisdiction founded on 28 U.S.C. § 1332 22 requires that the parties be in complete diversity and the amount in controversy exceed 23 $75,000.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 24 2003). For the parties to be in complete diversity, “each defendant must be a citizen of a 25 different state from each plaintiff.” In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 26 1234 (9th Cir. 2008). 27 Here, Plaintiff alleges that she resides in San Diego, California and that Defendant 28 Martine Pina resides in Chula Vista, California. Compl. at 1–2. It, thus, appears unlikely 1 || at this point that diversity jurisdiction exists. And the fact that Plaintiff points to a federal 2 ||source of law in her Complaint does not mean that federal question jurisdiction exists 3 || either. As a general matter, “criminal statutes . . . do not give rise to civil liability.” Allen 4 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (citing Aldabe v. Aldabe, 5 F.2d 1089, 1092 (9th Cir. 1980)). And as to 18 U.S.C. § 228
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1 2 3 4 5 6 7 10 11 MARCELINA PINA, Case No.: 25-CV-386 JLS (SBC)
12 Plaintiff, ORDER (1) DENYING REQUEST 13 v. FOR APPOINTMENT OF COUNSEL AND (2) ORDERING PLAINTIFF TO SHOW CAUSE 15 Defendant. (ECF No. 5) 16 17 Presently before the Court is Plaintiff Marcelina Pina’s Request for Appointment of 18 Counsel (“Req.,” ECF No. 5). Having carefully considered Plaintiff’s Request and the law, 19 the Court DENIES Plaintiff’s Request for the reasons that follow. 21 Plaintiff, who is proceeding pro se, initiated this action on February 21, 2025, by 22 filing a Complaint utilizing this district’s form complaint. See ECF No. 1 (“Compl.”). She 23 appears to raise a claim under 18 U.S.C. § 228, a criminal statute making unlawful failure 24 to pay legal child support obligations when certain conditions are met related to the 25 interstate nature of the unpaid obligation. The Court denied Plaintiff’s Motion for Leave 26 to Proceed in Forma Pauperis, ECF No. 4, and then about one month later, Plaintiff paid 27 the required $405 filing fee, ECF No. 6. She also concurrently filed the instant Request, 28 asking to add the attorney Andre Rios Bollinger to her case. See Req. 2 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 3 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 4 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” United 5 States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 6 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 7 limited discretion to “request” that an attorney represent an indigent civil litigant in 8 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 9 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 10 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 11 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 12 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 13 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 14 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 15 “The decision to request counsel pursuant to § 1915(e)(1) first requires that the 16 plaintiff has been determined eligible to proceed pursuant to the IFP statute due to his 17 indigency.” Moses v. U.S. Dist. Ct. S. Dist. of Cal., No. 15-cv-01793 BEN (RBB), 18 2015 WL 13238665, at *2 (S.D. Cal. Nov. 20, 2015) (citing Agyeman, 390 F.3d at 1103). 19 Although 28 U.S.C. § 1915(a) does not specify the qualifications for proceeding IFP, the 20 plaintiff’s affidavit must allege poverty with some particularity. Escobeda v. Applebees, 21 787 F.3d 1226, 1234 (2015). Granting a plaintiff leave to proceed IFP may be proper, for 22 example, when the affidavit demonstrates that paying court costs will result in a plaintiff’s 23 inability to afford the “necessities of life.” Id. The affidavit, however, need not 24 demonstrate that the plaintiff is destitute. Id. 26 Plaintiff is not proceeding IFP and has failed to file an affidavit alleging that she 27 would be unable to afford the necessities of life if she is to pay court costs. On that ground 28 alone, Plaintiff’s Motion can be denied. But regardless of whether Plaintiff is indigent such 1 that she would be unable to afford both counsel to represent her in this matter as well as 2 the “necessities of life,” Escobeda, 787 F.3d at 1234, the Court finds that Plaintiff has 3 failed to demonstrate exceptional circumstances warranting the appointment of counsel at 4 this time. Plaintiff indicates that she would like appointed counsel to assist her in avoiding 5 future mistakes and taking the correct steps moving forward. Req. at 1. The Court 6 appreciates that concern, but with this case in its infancy—Defendant having yet to appear, 7 much less respond to the Complaint—“it is too early for the Court to determine [Plaintiff]’s 8 likelihood of success on the merits.” Clack v. San Diego Sheriffs Dep’t, 9 No. 08CV0624 IEG (RBB), 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 2009). Nor does 10 Plaintiff assert, and the Court does not find, that the legal issues presented by the case are 11 complex. Indeed, the Court was able to parse the general claim Plaintiff is pursuing and 12 assess its jurisdiction to hear the same. 13 In sum, Plaintiff has adequately litigated the case thus far, the case is still in its 14 infancy, and the Court currently is unable to determine how likely Plaintiff is to succeed 15 on the merits of her claim. For these reasons, neither the interests of justice nor exceptional 16 circumstances warrant appointment of counsel at this time. Accordingly, the Court 17 DENIES Plaintiff’s Request. Should circumstances change, Plaintiff may be permitted to 18 file another motion for appointment of counsel. 19 With respect to jurisdiction, however, the Court has doubts. Plaintiff contends this 20 Court has subject matter jurisdiction over this case under 28 U.S.C. § 1332, Compl. at 3, 21 otherwise known as “diversity jurisdiction.” “Jurisdiction founded on 28 U.S.C. § 1332 22 requires that the parties be in complete diversity and the amount in controversy exceed 23 $75,000.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 24 2003). For the parties to be in complete diversity, “each defendant must be a citizen of a 25 different state from each plaintiff.” In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 26 1234 (9th Cir. 2008). 27 Here, Plaintiff alleges that she resides in San Diego, California and that Defendant 28 Martine Pina resides in Chula Vista, California. Compl. at 1–2. It, thus, appears unlikely 1 || at this point that diversity jurisdiction exists. And the fact that Plaintiff points to a federal 2 ||source of law in her Complaint does not mean that federal question jurisdiction exists 3 || either. As a general matter, “criminal statutes . . . do not give rise to civil liability.” Allen 4 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (citing Aldabe v. Aldabe, 5 F.2d 1089, 1092 (9th Cir. 1980)). And as to 18 U.S.C. § 228, under which Plaintiff 6 || brings her claim, courts have been reluctant to find an implied private right of action. See, 7 \\e.g., Alaji Salahuddin v. Alaji, 232 F.3d 305, 311-12 (2d Cir. 2000). 8 Accordingly, the Court ORDERS Plaintiff to SHOW CAUSE as to why jurisdiction 9 || exists over this matter. Plaintiff SHALL file a response to this Order on or before June 4, 10 2025. 12 In light of the foregoing, the Court DENIES Plaintiff's Request for Appointment of 13 || Counsel (ECF No. 5) and ORDERS Plaintiff to SHOW CAUSE as to why this Court has 14 || subject matter over her claim. Should Plaintiff fail to respond to this Order as described 15 || above, the Court will enter a final order dismissing this civil action based both on lack of 16 subject matter jurisdiction and Plaintiff’s failure to prosecute in compliance with a court 17 || order requiring a response. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 18 Plaintiff is further reminded that, now that she has paid the filing fee in this matter, 19 remains responsible for completing her service requirements as prescribed by Federal 20 || Rule of Civil Procedure 4. 22 Dated: May 9, 2025 (een 73 on. Janis L. Sammartino United States District Judge 24 25 26 27 28