(PS) Espana v. Road Runner Tow ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ESPANA, No. 2:19-cv-00475-JAM-KJN PS 12 Plaintiff, 13 v. ORDER 14 ROAD RUNNER TOW, et al., 15 Defendants. 16 17 Presently pending before the court is pro se plaintiff’s renewed motion to appoint counsel. 18 (ECF No. 12.) The court denied plaintiff’s first motion to appoint counsel because “plaintiff 19 ma[de] no showing regarding his efforts to secure counsel. Rather, plaintiff simply request[ed] 20 the court appoint him counsel so that he may ‘prepare a proper complaint . . . [and] meet any and 21 all requirements and time constraints.’” (ECF No. 9 at 2-4.) Denying the motion, the court relied 22 on Bradshaw v. Zoological Society of San Diego, which directs a court to consider three factors 23 before appointing counsel to a pro se plaintiff: (1) plaintiff’s financial resources; (2) the efforts 24 already made by plaintiff to secure counsel; and (3) plaintiff’s likelihood of success on the merits. 25 662 F.2d 1301, 1318 (9th Cir. 1981). The court also noted that appointment of counsel is not a 26 matter of right. See Ivey v. Board of Regents, 673 F. 2d 266, 269 (9th Cir. 1982). 27 In his renewed motion to appoint counsel, plaintiff demonstrates that he wrote to several 28 attorneys, and at least one Bar Association in an effort to secure counsel in this matter. (ECF No. 1 12 at 1.) The court appreciates plaintiff’s efforts and additional information. Nevertheless, 2 appointment of counsel is not warranted at this juncture. 3 In its previous order, the court inadvertently failed to reference the standard for appointing 4 counsel under 28 U.S.C. § 1915. In Wilborn v. Escalderon, the Ninth Circuit Court of Appeals 5 explained that “counsel may be designated under section 1915(d) only in ‘exceptional 6 circumstances’. . . [which] requires an evaluation of both ‘the likelihood of success on the merits 7 [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the 8 legal issues involved.’” 789 F.2d 1328, 1331 (9th Cir. 1986) (internal citations omitted). 9 Wilborn concerned a motion for counsel from an indigent civil litigant under 28 U.S.C. 10 § 1915(d) in a “1983 action . . . alleg[ing] that the defendants had conspired to deprive Wilborn of 11 his property without due process of law” when Wilborn’s vehicle was impounded and he was 12 prevented from retrieving property from his vehicle. 789 F.2d at 1330-31. Similarly, here, 13 plaintiff proceeds as an indigent civil litigant under 28 U.S.C. § 1915 and requests the 14 appointment of counsel in a 1983 action, alleging that defendants violated plaintiff’s Fourth 15 Amendment rights by preventing plaintiff from retrieving property from his vehicle while it was 16 impounded. (See ECF Nos. 2, 7, 8, 12.) 17 Bradshaw, on the other hand, concerned a request for appointment of counsel in the 18 context of an employment discrimination case brought under the 1964 Civil Rights Act. 662 F.2d 19 1318. While the Bradshaw standard informs the court’s analysis, the standard in Wilborn is more 20 appropriate in this case. 21 The district court in Wilborn denied the request for appointment of counsel and the Ninth 22 Circuit affirmed, explaining: 23 Wilborn has not demonstrated a likelihood of success on the merits. In addition, we do not find that any difficulty Wilborn experienced 24 in attempting to litigate his case derived from the complexity of the issues involved. Although discovery was essential in order for 25 Wilborn to learn who had impounded his vehicle and why, particularly since Cook allegedly misinformed him, the need for such 26 discovery does not necessarily qualify the issues involved as “complex.” Most actions require development of further facts during 27 litigation and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case. If all that 28 was required to establish successfully the complexity of the relevant 1 issues was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues. Thus, 2 although Wilborn may have found it difficult to articulate his claims pro se, he has neither demonstrated a likelihood of success on the 3 merits nor shown that the complexity of the issues involved was sufficient to require designation of counsel. 4 5 | Wilborn, 789 F.2d at 1331. 6 As in Wilborn, plaintiff has not demonstrated a likelihood of success on the merits in this 7 || case. While “the court cannot conclude that plaintiff's complaint is frivolous at this juncture” g | (ECF No. 9 at 2), the court is equally unable to conclude that plaintiff is likely to succeed on his 9g | claims. Moreover, there is no indication that the complexity of the legal issues involved prevents 10 | plaintiff from articulating his claims, as a pro se litigant. Plaintiff had some initial difficulty 11 | articulating his claims. However, the court twice granted plaintiff leave to amend and directed 12 | service of the second amended complaint. (See ECF No. 9.) Importantly, the case in Wilborn 13 || was more developed and involved more complicated situations than the present matter. For 14 | example, in Wilborn, the parties had already engaged in discovery, 789 F.2d at 1330-31, whereas 15 || here defendants have not even been served. Indeed, plaintiff's next step is to follow the 16 | directions set forth in the court’s July 24, 2019 order directing service—directions that involve 17 | administrative tasks, not complex legal issues. (ECF No. 9 at 3-4.) 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs renewed motion to appoint 19 | counsel (ECF No. 12) is DENIED. 290 | Dated: August 9, 2019 21 Ad 0 KENDALL J. espana.475.order mot app UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28