Bart D. Kimber v. United States of America; Carlos Del Toro, Secretary of the Navy
- Proceeding
- district
- Area
- civil
- Panel
- Barry T. Moskowitz (author)
Analysis
The court considered a pro se plaintiff's motion for appointment of counsel under 28 U.S.C. § 1915(e)(1) and 42 U.S.C. § 2000e-5(f)(1). The court denied the motion without prejudice, finding that the plaintiff's claim lacked demonstrated merit given prior dismissals, but allowed for re-examination at a future settlement conference or if the case proceeds to trial.
| What the court decided | The model |
|---|---|
Motion for appointment of counsel under 28 U.S.C. § 1915(e)(1) is denied.“The Court denies the Plaintiffs claim for appointed counsel under 28 U.S.C. § 1915(e)(1) for the reasons set forth in the Court’s prior order denying appointment of counsel filed on October 25, 2024.” | agree with court The court relies on a prior order (ECF No. 82) to deny the request. While the text of the prior order is not provided in this document, the current order explicitly incorporates that reasoning. In the context of a district court order, incorporating prior reasoning is a standard procedural mechanism. The denial is consistent with the general principle that appointment of counsel under § 1915(e)(1) is discretionary and requires a showing of merit and inability to afford counsel. |
Motion for appointment of counsel under 42 U.S.C. § 2000e-5(f)(1) is denied.“Therefore, the Court denies the Plaintiffs claim for appointed counsel under 42 U.S.C. § 2000e-5(f)(1).” | agree with court The court applies the three-factor test from Bradshaw v. Zoological Soc. of San Diego. It finds that while financial constraints and efforts to secure counsel are alleged, the court cannot determine if the claim has merit because the complaint has been dismissed in full twice previously. This is a logical application of the 'merit' factor; a claim that has been dismissed twice without amendment or success is unlikely to have merit at the current stage, justifying denial of counsel. |
The order itself: sound — The order correctly identifies the relevant statutory provisions and the controlling Ninth Circuit precedent (Bradshaw) for the Title VII appointment of counsel request. It logically applies the 'merit' factor by noting the history of dismissals. The denial without prejudice preserves the plaintiff's right to reapply if the case's status changes (e.g., proceeding to trial), which is a reasonable procedural safeguard. The incorporation of the prior order for the § 1915(e)(1) claim is procedurally sound, assuming the prior order contained valid reasoning.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BART D. KIMBER, Case No.: 3:21-cv-01487-BTM-GC 12 Plaintiff, ORDER DENYING MOTION TO 13 v. APPOINT COUNSEL 14 [ECF NO. 116] 15 UNITED STATES OF AMERICA; and CARLOS DEL TORO, Secretary of the 16 Navy, 17 Defendants. 18 19 20 21 22 23 24 25 26 // 27 // 28 // l Pending before the Court is the Plaintiff's motion for appointment of counsel. (ECF 2 ||No. 116.) He argues that he should be appointed counsel pursuant to 42 U.S.C. § 2000e- 3 5(@)(1) or 28 U.S.C. § 1915(e)(1). Ud. at 4-5.) 4 The motion is DENIED without prejudice. The Court denies the Plaintiffs claim 5 || for appointed counsel under 28 U.S.C. § 1915(e)(1) for the reasons set forth in the Court’s 6 || prior order denying appointment of counsel filed on October 25, 2024. (ECF No. 82, at 7 || 13.) Under 42 U.S.C. § 2000e-5(f)(1), the Court 1s required to assess, “(1) the plaintiff's 8 || financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether 9 || the plaintiff's claim has merit.” Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 10 (9th Cir. 1981). Although the Plaintiff has alleged his financial constraints and efforts 11 secure counsel, the Court cannot determine whether the Plaintiff’s claim has merit at this 12 ||stage. The Court notes that it has dismissed the Plaintiffs complaint in full twice before. 13 (ECFs No. 54, 82.) Therefore, the Court denies the Plaintiffs claim for appointed counsel 14 under 42 U.S.C. § 2000e-5(f)(1). 15 At the settlement conference on September 11, 2026, the Magistrate Judge may 16 ||reexamine whether appointment of counsel would be appropriate. If this case is proceeding 17 || to trial after discovery is closed, the Plaintiff may reapply for appointed counsel. 18 IT IS SO ORDERED. . Dated: June 22, 2026 ill eek Homodbie Barry Ted Hh ware 21 United States District Judge 22 23 24 25 26 27 28 2 □□