Neill v. YMCA of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ANGEL MICHAEL NEILL, Case No.: 23-CV-457 JLS (DEB) 12 Plaintiff, ORDER DENYING REQUEST FOR 13 v. APPOINTMENT OF COUNSEL 14 YMCA OF SAN DIEGO, (ECF No. 2) 15 Defendant. [16] 17 Presently before the Court is Plaintiff Angel Michael Neill’s (“Plaintiff”) Request 18 for Appointment of Counsel (“Req.,” ECF No. 2). Having carefully considered Plaintiff’s 19 Request and the law, the Court DENIES Plaintiff’s Request for the reasons that follow. 20 BACKGROUND 21 Plaintiff, who is proceeding pro se, initiated this action on March 14, 2023, by filing 22 a Complaint utilizing this District’s Form Complaint. See ECF No. 1 (“Compl.”). He 23 subsequently filed some additional exhibits thereto (ECF No. 4) and an “Amend[ed] 24 Complaint” (“FAC,” ECF No. 6). Liberally construed, Plaintiff’s pleadings appear to raise 25 one or more claims for employment discrimination under Title VII of the Civil Rights Act 26 of 1964 against Defendant YMCA of San Diego (“Defendant”). See generally Compl.; 27 FAC. Plaintiff paid the requisite filing fees rather than moving to proceed in forma 28 pauperis (“IFP”), see ECF No. 1-4, and concurrently filed the instant Request, see Req. 1 LEGAL STANDARD 2 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social 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 (9th 9 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., Civil 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. 25 ANALYSIS 26 As Plaintiff is not proceeding IFP, he provides an “Affi[d]avit in Support of Request 27 for Counsel” to demonstrate his inability to pay. See Req. at 4–6 (“Aff.”). Plaintiff declares 28 under penalty of perjury that he is presently unemployed, see id. ¶ 4, and that he received 1 approximately $3,000 in wages from his prior employer during the preceding twelve 2 months, see id. ¶ 7. He has no other sources of income. See id. He declares that he has 3 $5,186.75 in checking and savings accounts, see id. ¶ 8; that he owns two cars worth an 4 estimated $7,000 combined, see id. ¶ 9; that his monthly expenses are approximately 5 $1,050, see id. ¶ 12; and that his mother is dependent on him for support, see id. ¶ 10. He 6 also declares that he owes $2,639.47 in credit card debt. See id. ¶ 11. 7 Regardless of whether Plaintiff is indigent such that he would be unable to afford 8 both counsel to represent him in this matter as well as the “necessities of life,” Escobeda, [9] 787 F.3d at 1234 , however, the Court finds that Plaintiff has failed to demonstrate 10 exceptional circumstances warranting the appointment of counsel at this time. Plaintiff 11 indicates that he needs appointed counsel “to over look [his] documents and email and to 12 fully examin[e] and help guide [him] through this court system to do the right thin[g] in 13 this court to make [his] case effective.” Req. at 3. However, with this case in its infancy— 14 Defendant having yet to appear, much less respond to the Complaint—“it is too early for 15 the Court to determine [Plaintiff]’s likelihood of success on the merits.” Clack v. San 16 Diego Sheriffs Dep’t, No. 08CV0624 IEG (RBB), 2009 WL 413030 , at *2 (S.D. Cal. Feb. 17 18, 2009) (noting that the court was unable to conclude that the plaintiff was likely to 18 succeed even where the plaintiff’s complaint survived IFP screening process). Nor does 19 Plaintiff assert, and the Court does not find, that the legal issues presented by the case are 20 complex. Indeed, although Plaintiff’s Complaint and FAC are not models of clarity, the 21 Court was able to parse the general claims Plaintiff is pursuing and assess its jurisdiction 22 to hear the same. 23 In sum, Plaintiff has adequately litigated the case thus far, the case is still in its 24 infancy, and the Court currently is unable to determine how likely Plaintiff is to succeed 25 on the merits of his claims. For these reasons, neither the interests of justice nor exceptional 26 circumstances warrant appointment of counsel at this time. Accordingly, the Court 27 DENIES Plaintiff’s Request. Should circumstances change, Plaintiff may be permitted to 28 file another motion for appointment of counsel. 1 CONCLUSION 2 In light of the foregoing, the Court DENIES Plaintiff's Request for Appointment of 3 || Counsel (ECF No. 2). 4 IT IS SO ORDERED. 5 Dated: March 29, 2023 ined tt f Le 6 on. Janis L. Sammartino 4 United States District Judge [10] 1]