Kimber v. Harker
- Proceeding
- district
- Area
- civil
- Panel
- Barry T. Moskowitz (author)
Analysis
The court considered a request for appointment of counsel and a motion to proceed in forma pauperis in a civil employment discrimination case. The court denied the request for counsel without prejudice and denied the motion to proceed in forma pauperis as moot because the plaintiff had already paid the filing fee.
| What the court decided | The model |
|---|---|
Request for Appointment of Counsel denied without prejudice“Therefore, the Court DENIES without prejudice Plaintiff’s Motion for Appointment of Counsel.” | agree with court The court correctly applied the standard from Terrell v. Brewer, which requires a showing of exceptional circumstances, including likelihood of success and ability to articulate claims. The court found the complaint 'largely unintelligible' and thus could not find a likelihood of success. Denying without prejudice is appropriate at the pleading stage when the complaint is deficient but potentially amendable. |
Motion to Proceed In Forma Pauperis denied as moot“Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 2) is DENIED as moot, as Plaintiff has already paid the required filing fee.” | agree with court If the filing fee has been paid, the motion to proceed in forma pauperis is indeed moot because the purpose of the motion (to waive the fee) is no longer necessary. The footnote further supports this by noting the plaintiff's income and assets suggest an ability to pay, though the mootness is the primary basis for denial. |
The order itself: sound — The order is procedurally sound. It correctly cites the controlling Ninth Circuit precedent for appointing counsel in civil cases. The factual finding that the complaint is 'largely unintelligible' supports the conclusion that there is no likelihood of success at this stage. The denial of the IFP motion as moot is logically consistent with the fact that the fee was paid. The order is concise and addresses the specific motions filed.
Opinion
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 BART D. KIMBER, from EEOC Case No.: 21-cv-1487-BTM-WVG and OFO Appeal No. 2019005521 10 ORDER DENYING REQUEST 11 Plaintiff, FOR APPOINTMENT OF v. COUNSEL AND DENYING 12 MOTION TO PROCEED IN THOMAS W. HARKER, Acting 13 FORMA PAUPERIS Secretary, Department of the 14 Navy, Agency [ECF NOS. 2, 3] 15 Defendant. 16 17 Plaintiff has filed a Request for Appointment of Counsel. (ECF No. 3.) There 18 is no right to counsel in civil cases, and district courts may appoint counsel only 19 under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 20 Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both 21 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his 22 claims pro se in light of the complexity of the legal issues involved.’ Neither of 23 these issues is dispositive and both must be viewed together before reaching a 24 decision.” Id. 25 Plaintiff’s complaint appears to allege employment discrimination but is 26 largely unintelligible. At this point in time, the Court cannot say that there is any 27 likelihood of success on the merits. Therefore, the Court DENIES without 28 prejudice Plaintiff’s Motion for Appointment of Counsel. 1 Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 2) is DENIED as 2 ||moot, as Plaintiff has already paid the required filing fee.! (ECF No. 6.) 3 4 1S SO ORDERED. 5 6 || Dated: November 8, 2021 7 Bay Tid. Mahar 8 Hono ble Barry Ted Moskowitz United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ——__ 27 The Court notes that Plaintiff's application does not make a sufficient showing of inability to pay the required 28 fling fees, as he states that his monthly income is $3,700, that he owns a home valued at $140,000, and that he