Mascorro v. The City of San Diego ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No. 21-cv-01725-BAS-MDD 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 THE CITY OF SAN DIEGO, et al., MOTION TO APPOINT COUNSEL 15 Defendants. (ECF No. 2); 16 AND 17 (2) GRANTING PLAINTIFF’S 18 MOTION TO PROCEED IN FORMA 19 PAUPERIS (ECF No. 3). 20 21 22 I. BACKGROUND 23 On October 5, 2021, Plaintiff Eloy Mascorro, proceeding pro se, filed the present 24 action against Defendants the City of San Diego, the San Diego Police Department, the 25 San Diego Chief of Police, and unnamed police officers (“Officers 1–4”). Mascorro alleges 26 that Defendants violated his or her constitutional rights by detaining, searching, seizing, 27 and arresting him or her without probable cause and damaging his or her seized property. 28 1 Mascorro alleges that, in the process, several police officers committed perjury as to the 2 cause for the arrest. In addition, Mascorro alleges that the officers acted in retaliation 3 against Mascorro for making complaints about police misconduct. 4 Mascorro moves for appointment of counsel (ECF No. 2) and for leave to proceed 5 in forma pauperis (“IFP”) (ECF No. 3). The Court finds the motions suitable for 6 determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 7 78(b); Civ. L.R. 7.1(d)(1). For the following reasons, the Court DENIES Plaintiff’s motion 8 for appointment of counsel and GRANTS Plaintiff’s motion for leave to proceed IFP. 9 10 II. MOTION TO APPOINT COUNSEL 11 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 12 Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not 13 have the authority “to make coercive appointments of counsel.” Mallard v. United States 14 District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. 15 Currency, 54 F.3d 564, 569 (9th Cir. 1995). 16 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1) to 17 “request” that an attorney represent indigent civil litigants upon a showing of “exceptional 18 circumstances.” See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th 19 Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking assistance 20 requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and 21 an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 22 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 23 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 24 Cir. 1991). 25 Here, Mascorro’s pleading suggests that he or she is capable of legibly articulating 26 the facts and circumstances relevant to the claims raised in the Complaint. The Court thus 27 declines to exercise its limited discretion to request that an attorney represent him or her 28 1 pro bono pursuant to 28 U.S.C. § 1915(e)(1). See Lassiter v. Dept. of Soc. Servs., 452 U.S. 2 18, 25 (1981); Agyeman, 390 F.3d at 1103. 3 4 III. MOTION TO PROCEED IN FORMA PAUPERIS 5 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 6 required fees or security to commence a legal action may petition the court to proceed 7 without making such payment. The determination of indigency falls within the district 8 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 9 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 10 reviewing court to exercise its sound discretion in determining whether the affiant has 11 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 12 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 13 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 14 poverty] is sufficient which states that one cannot because of his poverty pay or give 15 security for costs . . . and still be able to provide himself and dependents with the necessities 16 of life.” Id. at 339. At the same time, however, “the same even-handed care must be 17 employed to assure that federal funds are not squandered to underwrite, at public expense 18 . . . the remonstrances of a suitor who is financially able, in whole or in material part, to 19 pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 20 District courts, therefore, tend to reject IFP applications where the applicant can pay 21 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 22 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that a district court did not 23 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 24 monthly salary and who received $110 per month from family), vacated in part on other 25 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis 26 status may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of 27 Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 28 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. 1 || Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 2 || pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 3 || the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 4 ||and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 5 Having read and considered Plaintiff's application, the Court finds that Plaintiff 6 ||meets the requirements for IFP status under 28 U.S.C. § 1915. Plaintiff is unemployed, 7 ||owns $20 in cash, and does not have any money in a checking, savings, or other bank 8 |}account. (IFP Mot. §§ 2, 4, ECF No. 3.) Plaintiff receives $238 in public assistance and 9 || $80 in “food rebates” every month but spends most of the monthly income to buy food and 10 || pay for laundry. (/d. □ 1, 8.) Further, Plaintiff does not own any real estate, an automobile, 11 |/or any other significant assets. (/d. § 5.) Under these circumstances, the Court finds that 12 |}requiring Plaintiff to pay the court filing fees would impair his or her ability to obtain the 13 ||necessities of life. See Adkins, 335 U.S. at 339. 14 In light of the foregoing, the Court GRANTS Plaintiffs application for leave to 15 || proceed IFP (ECF No. 3). However, if it appears at any time in the future that Plaintiff's 16 || financial picture has improved for any reason, the Court will direct Plaintiff to pay the 17 || filing fee to the Clerk of the Court. This includes any recovery Plaintiff may realize from 18 || this suit or others and any assistance Plaintiff may receive from family or the government. 19 20 ||IV. CONCLUSION 21 The Court DENIES Plaintiff's motion for appointment of counsel (ECF No. 2) and 22 ||GRANTS Plaintiffs motion to proceed IFP (ECF No. 3). 23 IT IS SO ORDERED. 24 /\ yy 25 || DATED: October 12, 2021 ( yi uA (Liphan 6 26 United States District Judge 27 28 _4A.