Russo v. County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a pro se plaintiff's motion to appoint pro bono counsel and found that the plaintiff had not yet established indigency or addressed the necessary legal factors. The court ordered the plaintiff to file an application to proceed in forma pauperis and a supplemental brief addressing the likelihood of success and the complexity of the claims before the motion could be ruled upon.
| What the court decided | The model |
|---|---|
Order requiring plaintiff to file an Application to Proceed in District Court Without Prepaying Fees or Costs (Form AO 239) and a supplemental brief addressing the likelihood of success on the merits and the ability to articulate claims pro se.“Accordingly, the Court ORDERS Plaintiff to file an Application to Proceed in District Court Without Prepaying Fees or Costs (Form AO 239) before the Court can rule on his pending motion... Accordingly, the Court ORDERS Plaintiff to file a supplemental brief addressing both his likelihood of success on the merits as well as his ability to articulate his claims pro se in light of the complexity of the legal issues involved.” | agree with court The court correctly identified that appointment of counsel under 28 U.S.C. § 1915(e)(1) is discretionary and requires a showing of indigency, which is typically established through an IFP application. Furthermore, the court correctly applied the two-part test from Palmer v. Valdez for determining whether 'exceptional circumstances' exist to warrant appointment of counsel in a civil case. Because the plaintiff's initial motion did not address these statutory and case law requirements, the court's decision to require additional documentation and briefing before ruling is procedurally sound and consistent with Ninth Circuit precedent. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory prerequisite of indigency for appointment of counsel and applies the correct Ninth Circuit test for 'exceptional circumstances.' The court's decision to defer ruling until the plaintiff provides the required documentation and briefing is a standard and appropriate procedural step.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 TONINO RUSSO, Case No.: 18cv1837-MMA (MDD) 11 ORDER REQUIRING PLAINTIFF 12 Plaintiff, TO FILE APPLICATION TO v. PROCEED IN FORMA PAUPERIS 13 AND TO SUBMIT SUPPLEMENTAL COUNTY OF SAN DIEGO, et al., BRIEF RE: MOTION TO APPOINT 14 PRO BONO COUNSEL 15 Defendants. 16 17 On November 7, 2019, Plaintiff Tonino Russo (“Plaintiff”), proceeding pro se, 18 filed a motion to appoint pro bono counsel. See Doc. No. 30. The Court has conducted 19 an initial review of Plaintiff’s motion and finds that Plaintiff must submit additional 20 documentation before the Court can rule on Plaintiff’s request for pro bono counsel. 21 As a preliminary matter, appointment of pro bono counsel requires a showing of 22 indigency. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent 23 any person unable to afford counsel.”). Thus, the appointment of counsel first requires 24 that Plaintiff has been determined eligible to proceed in forma pauperis (“IFP”) due to his 25 indigency. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). 26 Accordingly, the Court ORDERS Plaintiff to file an Application to Proceed in District 27 Court Without Prepaying Fees or Costs (Form AO 239) before the Court can rule on his 28 pending motion. 1 Additionally, while there is no constitutional right to counsel in a civil action, the 2 Court may under “exceptional circumstances” exercise its discretion to request an 3 || attorney represent an indigent civil litigant pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. 4 || Valdez, 560 F.3d 965, 970 (9th Cir. 2009). When determining whether “exceptional 5 || circumstances” exist, courts consider: (1) the likelihood of success on the merits; and (2) 6 || the ability of the Plaintiff to articulate his claims pro se in light of the complexity of the 7 || legal issues involved. See id. “Neither of these considerations is dispositive and instead 8 ||must be viewed together.” Jd. Plaintiff does not address these considerations in his 9 || pending motion to appoint counsel. Accordingly, the Court ORDERS Plaintiff to file a 10 ||supplemental brief addressing both his likelihood of success on the merits as well as his 11 || ability to articulate his claims pro se in light of the complexity of the legal issues 12 involved. 13 CONCLUSION 14 Based on the foregoing, Plaintiff must file on or before December 20, 2019: 15 1. A completed Form AO 239 (Application to Proceed in District Court Without 16 Prepaying Fees or Costs); and 17 2. A supplemental brief addressing both Plaintiff’s likelihood of success on the merits 18 as well as his ability to articulate his claims pro se in light of the complexity of the 19 legal issues involved in this case. 20 Upon the submission of both documents, the Court will review Plaintiff's motion 21 appoint pro bono counsel and issue an order in due course. The Clerk of Court is 22 |/instructed to mail Plaintiff a blank Form AO 239 (Application to Proceed in District 23 ||Court Without Prepaying Fees or Costs) along with a copy of this Order. 24 IT IS SO ORDERED. 25 ||Dated: November 12, 2019 26 BMiihel MM - / hillr HON. MICHAEL M. ANELLO 38 United States District Judge