Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. SOCIAL SECURITY, v. Plaintiff, LYNN THOMPSON, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv0426-LAB(RBB) ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [DOC. NO. 2]; (2) DIRECTING UNITED STATES MARSHAL TO EFFECT SERVICE OF PROCESS; AND (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 3] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On March 6, 2008, Plaintiff Lynn Thompson submitted a civil complaint [doc. no. 1] against Defendant Social Security Administration ("SSA"). Plaintiff asserts that the "downtown

social security off[ice] has refused to give me an appeal." (Compl. 1.) Thompson also asserts that she was improperly given (Id.) Finally, she

overpayments that she is unable to repay.

complains that she was supposed to receive an increase in benefits this year, but she did not receive the full increase to which she is entitled. (Id.)

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I. MOTION TO PROCEED IN FORMA PAUPERIS Plaintiff has filed a Motion to Proceed In Forma Pauperis [doc. no. 2]. Under 28 U.S.C. § 1915, "any court of the United

States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor." U.S.C.A § 1915(a)(1) (West 2006). 28

Thompson alleges that her only (IFP Mot. 2.) She

source of income is social security benefits.

is not currently employed and does not own any significant assets. (Id. at 2-3.) Given these circumstances, the Court GRANTS Plaintiff's Application to Proceed In Forma Pauperis. 1915(a)(1). See 28 U.S.C. §

The United States Marshal shall serve a copy of the

Complaint, summons, and Order Granting Application to Proceed In Forma Pauperis upon Defendant as directed by Plaintiff on U.S. Marshal Form 285. See id. § 1915(d). All costs of service shall

be advanced by the United States. Plaintiff shall serve on Defendant or, if appearance has been entered by counsel, on Defendant's counsel, a copy of every further pleading or document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the manner in which a true and correct copy of any document was served on Defendant or counsel for Defendant and the date of service. // //

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II. MOTION FOR APPOINTMENT OF COUNSEL Thompson has also filed a Motion for Appointment of Counsel [doc. no. 3]. "The court may request an attorney to represent any 28 U.S.C.A. § 1915(e)(1) (West

person unable to afford counsel." 2006).

Yet, "it is well-established that there is generally no United States v.

constitutional right to counsel in civil cases."

Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994); Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir. 1990)). Federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Court,

490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in United States Currency, 54 F.3d 564, 569 (9th Cir. 1995). Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See

Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims "in light of the complexity of the legal issues involved." Agyeman, 390 F.3d at 1104 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citation omitted)). "`Neither of these

factors is dispositive and both must be viewed together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn

v. Escalderon, 789 F.2d 1328, 1332 (9th Cir. 1986)).

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Plaintiff's Motion for Appointment of Counsel does not provide the Court with exceptional circumstances that would warrant the appointment of counsel in this case. Thompson has not shown a The Complaint is

likelihood of success on the merits of her claim.

a one-page document which alleges that the SSA "refused to give [Plaintiff] an appeal" but does not provide any detail regarding this claim. (Compl. 1.) Thompson does not identify what decision

she is trying to appeal to the SSA or when any appeal was denied. She further alleges that she should have received a twenty-dollar increase in her benefits this year, but instead she only received a fourteen-dollar increase. (Id.) The Complaint does not include

any facts demonstrating that Plaintiff was entitled to the increase she claims. Accordingly, the likelihood of success at this point The Court cannot conclude, however, that the

is questionable.

issues in the case are sufficiently complex to justify appointment of counsel. Thompson's only apparent reason in support of her request for counsel is that she is unemployed and her only source of income is social security benefits, and accordingly she cannot afford to hire a lawyer. (See Mot. for Counsel 5-6.) But indigence alone does Plaintiff's Motion

not entitle a plaintiff to appointed counsel.

for Appointment of Counsel is DENIED without prejudice. IT IS SO ORDERED.

Dated: April 4, 2008 Ruben B. Brooks United States Magistrate Judge Judge Burns All Parties of Record

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