Benitez v. Carlos Del Toro

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Rodrigo BENITEZ, Case No.: 23-cv-1242-AGS-BGS 4 Plaintiff, ORDER TO SHOW CAUSE AND DENYING MOTION TO APPOINT 5 v. COUNSEL (ECF 6) 6 Carlos DEL TORO, et al., 7 Defendants. [8] 9 Plaintiff Rodrigo Benitez moves for appointed counsel. Because there is no right to 10 appointed counsel in civil cases, that motion is denied. Furthermore, because Benitez has 11 not yet filed a proof of service, he is ordered to show cause why this case should not be 12 dismissed for failure to prosecute. 13 DISCUSSION 14 In a cogent July 5, 2023 complaint alleging age discrimination, retaliation, and a 15 hostile work environment, Benitez sued Carlos Del Toro, Secretary of the Navy. (See 16 ECF 1.) The Court construes one of his subsequent filings as a motion for the judicial 17 recruitment of counsel. (See ECF 6.) 18 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, [19] 560 F.3d 965, 970 (9th Cir. 2009). Even under the statutory authority to recruit counsel in 20 civil cases, the Court cannot force attorneys to represent an indigent civil litigant. See 21 Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989) (holding that 22 the relevant statute—28 U.S.C. § 1915—“does not authorize the federal courts to make 23 coercive appointments of counsel”). But “a court may under ‘exceptional circumstances’ 24 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915 (e)(1).” Palmer, [25] 560 F.3d at 970 (citation omitted). “When determining whether exceptional circumstances 26 exist, a court must consider the likelihood of success on the merits as well as the ability of 27 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 28 involved.” Id. (cleaned up). 1 As a threshold matter, Benitez has not demonstrated that he is “unable to afford 2 ||counsel” pursuant to 28 U.S.C. § 1915 (e)(1). No application to proceed in forma pauperis 3 any statement of financial condition has been filed. Even assuming an inability to pay, 4 || Benitez has not otherwise met the burden for judicial recruitment of counsel. He points to 5 ||no extraordinary circumstances and has not described any efforts to secure pro bono 6 ||counsel on his own.! The likelihood of success on the merits is unclear, as the Court has 7 evidence before it. Finally, Benitez has so far articulated his factual allegations with 8 clarity. (See generally ECF 1.) Thus, the motion to appoint counsel is denied. 9 The Court previously granted Benitez’s motion for an extension of time to serve 10 || defendant. (See ECF 4 & 5). In its order, the Court directed: “Plaintiff must serve a copy 11 the summons and complaint on defendant by September 1, 2023.” (ECF 5.) Despite this 12 || Court order, plaintiff has not yet filed any proof of service. 13 CONCLUSION 14 Accordingly, Benitez’s motion for appointment of counsel is DENIED. Benitez is 15 || further ORDERED, by November 3, 2023, to show cause in writing why this case should 16 be dismissed for failure to prosecute. 17 || Dated: October 10, 2023 18 = f 19 Andrew G. Schopler United States District Judge [24] 26 ' Benitez has apparently searched, without luck, for paid counsel since September 27 2022. (See ECF 6, at 1 (“[E]ach would say we will take your case. Then each one will take a portion of the fee [illegible] consultation ... [and] then each one will [bail] out.”).) Benitez mentions no attempts to engage pro bono counsel on his own.