Smith v. Social Security Administration ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT Bxeenee Seattle 7 DARREN LEE SMITH, 8 Plaintiff, Case No. C21-5152 RAJ 9 Vv. ORDER DENYING SECOND 10 APPLICATION FOR COURT- COMMISSIONER OF SOCIAL SECURITY, APPOINTED COUNSEL 11 Defendant. 12 This matter is before the Court on Plaintiffs second motion for appointment of counsel. 13 Dkt. 25. For the reasons discussed below, this motion is DENIED. 14 Plaintiff proceeds pro se and in forma pauperis in this civil action challenging the fairness 15 of the Social Security Administration’s “concurrent benefits” and “limitation of resources” 16 calculations relating to Disability Insurance Benefits and Supplemental Security Income. Dkt. 17 11 at 7-8; Dkt. 6. Plaintiff's previous motion to appoint counsel was denied because he had 18 shown neither a likelihood of success on the merits nor an inability to articulate his claims pro se 19 in light of the complexity of the issues involved. Dkt. 19, 20; see Weygandt v. Look, 718 F.2d 20 952, 954 (9th Cir. 1983) (In considering appointment of counsel in civil cases, the Court 21 considers “the likelihood of success on the merits as well as the ability of the [plaintiff] to 22 articulate his claims pro se in light of the complexity of the legal issues involved.”). 23 On July 15, 2021, the Commissioner filed a motion to dismiss this case, contending that ORDER NENVING SRBCONT ADDI TION ROR COTIRT. 1 | Plaintiff had not exhausted his administrative remedies by seeking review before an Administrative Law Judge and the Appeals Council before filing in this Court, and that he did 3 || not allege a claim that would fit an exception to the exhaustion requirement. Dkt. 23. Plaintiff 4|| may file any opposition to the Commissioner’s motion by August 2, 2021. See Local Civil Rules for the Western District of Washington (LCR) 7(d)(3). 6 On July 16, 2021, Plaintiff filed the second motion for appointment of counsel. Dkt. 25. To show likelihood of success on the merits, Plaintiff notes that “‘The White House’ just fired 8 || the SSA Commissioner.” Dkt. 25 at 2. However, none of the statements in Plaintiff's motion 9 || indicate the firing was related to concurrent benefits or limitation of resources calculations. See Dkt. 25 at 5. And there is no indication that the agency changed the way it makes these 11 || calculations during the former Commissioner’s tenure. The former Commissioner’s firing does 12 || not change the Court’s assessment of likelihood of success on the merits. 13 To address his ability to articulate his claims pro se, Plaintiff states he is “a disabled PRO 14|| SE who knows nothing about the courts...” Dkt. 25 at 4. However, the Court must consider the 15 || complexity of the legal issues involved in the case, not Plaintiff's knowledge about the courts in general. The legal issues remain the fairness of the Commissioner’s concurrent benefits and limitation of resources calculations and now, with the Commissioner’s newly-filed motion to dismiss, the additional issue of whether Plaintiff is permitted to raise these issues in this Court at 19 || this time. 20 The Court must consider both the complexity factor and the likelihood of success factor. “Neither of these factors is dispositive and both must be viewed together before reaching a decision[.]” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While the Court 23 || recognizes that the Commissioner’s motion to dismiss adds to the complexity of this case, the ORHWER NENATVINIT CLMMOAM, ADDTIMATINAT COND CONTMma 1 likelihood of success on the merits has not been established. In assessing both factors together, 2 || the Court concludes Plaintiff has not shown the “exceptional circumstances” necessary for the 3 || Court to appoint counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 4 For the foregoing reasons, Plaintiffs application for court-appointed counsel (Dkt. 25) is 5 || DENIED without prejudice. 6 DATED this a TH, of SM , 2021 TOE 7 ALR United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23