(SS) Curlee v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY JOHN CURLEE, Case No. 1:20-cv-00145-SAB 12 Plaintiff, ORDER DIRECTING PARTIES TO PROCEED UNDER AMENDED 13 v. SCHEDULING ORDER 14 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF 15 Defendant. COUNSEL 16 (ECF Nos. 5, 28) 17 On January 29, 2020, Plaintiff Larry John Curlee, proceeding pro se and in forma 18 pauperis, filed this action seeking judicial review of a final decision of the Commissioner of 19 Social Security (“Commissioner” or “Defendant”) denying an application for benefits pursuant 20 to the Social Security Act. (ECF No. 1.) In his complaint, plaintiff claims he is currently “at 21 Coalinga State Hospital on a VOLUNTARY BASIS to receive treatment and evaluation.” (Id. at 22 3.) He asserts his Social Security benefits were wrongfully terminated. (Id. at 2–3.) 23 On February 10, 2020, Plaintiff consented to have a magistrate judge preside over this 24 action through entry of final judgment by signing the portion of the court’s consent form. (ECF 25 No. 7, filed Feb 13, 2020). On March 17, 2020, Defendant also consented to magistrate judge 26 jurisdiction. (ECF No. 10.) After the stay of this action was lifted, Plaintiff sent a letter to the 27 Clerk of the Court that, among other things, asked the court to inform him of what the next 1 required court action is and “what is expected of me and what time constraints are imposed.” 2 (ECF No. 22, filed May 26, 2021.) In response, the Court mailed Plaintiff the scheduling order, 3 including another consent form. Even though Plaintiff previously consented to the magistrate 4 judge, he executed another copy of the consent form on June 30, 2021, in which he declined to 5 consent to magistrate judge jurisdiction. (ECF No. 24, filed July 9, 2021.) On August 3, 2021, 6 the Court issued an order directing Plaintiff to clarify his intent regarding consent to magistrate 7 judge jurisdiction over this action. (ECF No. 27.) On August 13, 2021, a response to that order 8 from Plaintiff was filed. (ECF No. 28.) On August 18, 2021, the District Judge denied the 9 construed request to withdraw consent and this matter was reassigned back to the undersigned 10 Magistrate Judge Stanley A. Boone. (ECF No. 29.) Further, the District Judge deferred ruling 11 on Plaintiff’s request to appoint counsel that was contained in the August 13, 2021 filing, so that 12 the request could be decided by the undersigned after reassignment. (Id.) 13 A. Scheduling Guidelines 14 When Plaintiff previously requested that the Court inform him of the next required action 15 and the time constraints, Plaintiff had also requested the Clerk of the Court to advise the 16 undersigned of Plaintiff’s “situation so that time constraints can be broadened,” due to him being 17 “in a quarantine situation which makes access to the law library extremely difficult.” (ECF No. 18 22.) The Clerk of the Court then re-served the scheduling order on May 28, 2021. Since then, 19 no filing have been provided to the Court indicating that confidential letter briefs have been 20 exchanged, as required in the scheduling order. 21 Given that no filings indicating that confidential letter briefs have been served in this 22 action, the fact that on May 4, 2021, the stay of this action was lifted and the parties were 23 ordered to proceed under the scheduling guidelines, and given Plaintiff’s pro se status, the Court 24 finds good cause to amend the scheduling order and order the parties to proceed directly into a 25 simplified briefing schedule, and waive the requirement to exchange confidential letters. The 26 Court shall also broaden the time for Plaintiff to file an opening brief pursuant to his request. 27 Accordingly, the Court shall set a briefing schedule for the parties below. The Court now 1 B. Appointment of Counsel 2 In Plaintiff’s response filed on August 13, 2021, after requesting the Court reinstate his 3 old-age social security benefits and order Defendant to not take away any benefits in the future, 4 Plaintiff states if that is not possible, he requests the Court appoint an experienced attorney (“not 5 a disability charlatan”) because of the confusing nature of his case. (ECF No. 28 at 3.) 6 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to 8 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for 9 the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances 10 the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 11 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the 12 Court will seek volunteer counsel only in the most serious and exceptional cases. In determining 13 whether “exceptional circumstances exist, a district court must evaluate both the likelihood of 14 success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of 15 the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted) 16 (first alteration in original). “Neither of these considerations is dispositive and instead must be 17 viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of 18 demonstrating exceptional circumstances is on the plaintiff. See id. 19 The Court has considered Plaintiff’s request for appointed counsel but does not find the 20 required exceptional circumstances. In reviewing the complaint, the Court finds that Plaintiff’s 21 claims do not appear to present novel or complex issues of substantive law. Specifically, 22 Plaintiff appears to have been able to clearly articulate his allegations in a typed complaint, 23 clearly laid out and organized the sections in the complaint, completed a declaration attached to 24 the complaint, and compiled and attached exhibits to the complaint. Plaintiff has to date 25 demonstrated reasonable writing ability and legal knowledge. Finally, as currently presented and 26 in this stage of the case before Defendant has filed any substantive briefing, it is not clear 27 whether Plaintiff has a likelihood of success on the merits. Given Plaintiff’s ability to articulate 1 | counsel, though after the filing of the parties’ opening and responsive briefs to be filed, Plaintiff 2 | may file a renewed request for appointment. See Leon v. Celaya, No. 20-CV-00899-AJB-BGS, 3 | 2021 WL 533514, at *2 (S.D. Cal. Feb. 12, 2021) (“At this [early] stage, the Court cannot 4 | determine whether or not Plaintiff is likely to succeed on the merits of his claims.”). 5 Accordingly, Court finds that neither the interests of justice nor exceptional 6 | circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 7 | (9th Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). While a pro se litigant 8 | may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff 9 | in this instance, is able to “articulate his claims against the relative complexity of the matter,” the 10 | “exceptional circumstances” which might require the appointment of counsel do not exist. Rand 11 | v. Rowland, 113 F.3d at 1525. 12 C. Order 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff shall file an opening brief (motion for summary judgment) explaining the 15 legal and factual basis for Plaintiffs social security appeal, within forty-five (45) 16 days of service of this order; 17 2. Defendant shall file a responsive brief within thirty (30) days of service of 18 Plaintiff's opening brief/motion for summary judgment; 19 3. Plaintiff shall file any option reply brief within fifteen (15) days after service of 20 Defendant’s responsive brief; and 21 4. Plaintiff's request for appointment of counsel (ECF No. 28 at 3) is DENIED 22 without prejudice. 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ August 26, 2021 " UNITED STATES MAGISTRATE JUDGE 27 28