The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DAVID ESPANA, No. 2:19-cv-00475-JAM-KJN PS
12 Plaintiff,
13 v. ORDER
14 ROAD RUNNER TOW, et al.,
15 Defendants.
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17 Presently pending before the court is pro se plaintiff’s renewed motion to appoint counsel.
18 (ECF No. 12.) The court denied plaintiff’s first motion to appoint counsel because “plaintiff
19 ma[de] no showing regarding his efforts to secure counsel. Rather, plaintiff simply request[ed]
20 the court appoint him counsel so that he may ‘prepare a proper complaint . . . [and] meet any and
21 all requirements and time constraints.’” (ECF No. 9 at 2-4.) Denying the motion, the court relied
22 on Bradshaw v. Zoological Society of San Diego, which directs a court to consider three factors
23 before appointing counsel to a pro se plaintiff: (1) plaintiff’s financial resources; (2) the efforts
24 already made by plaintiff to secure counsel; and (3) plaintiff’s likelihood of success on the merits.
25 662 F.2d 1301, 1318 (9th Cir. 1981). The court also noted that appointment of counsel is not a
26 matter of right. See Ivey v. Board of Regents, 673 F. 2d 266, 269 (9th Cir. 1982).
27 In his renewed motion to appoint counsel, plaintiff demonstrates that he wrote to several
28 attorneys, and at least one Bar Association in an effort to secure counsel in this matter. (ECF No.
1 12 at 1.) The court appreciates plaintiff’s efforts and additional information. Nevertheless,
2 appointment of counsel is not warranted at this juncture.
3 In its previous order, the court inadvertently failed to reference the standard for appointing
4 counsel under 28 U.S.C. § 1915. In Wilborn v. Escalderon, the Ninth Circuit Court of Appeals
5 explained that “counsel may be designated under section 1915(d) only in ‘exceptional
6 circumstances’. . . [which] requires an evaluation of both ‘the likelihood of success on the merits
7 [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the
8 legal issues involved.’” 789 F.2d 1328, 1331 (9th Cir. 1986) (internal citations omitted).
9 Wilborn concerned a motion for counsel from an indigent civil litigant under 28 U.S.C.
10 § 1915(d) in a “1983 action . . . alleg[ing] that the defendants had conspired to deprive Wilborn of
11 his property without due process of law” when Wilborn’s vehicle was impounded and he was
12 prevented from retrieving property from his vehicle. 789 F.2d at 1330-31. Similarly, here,
13 plaintiff proceeds as an indigent civil litigant under 28 U.S.C. § 1915 and requests the
14 appointment of counsel in a 1983 action, alleging that defendants violated plaintiff’s Fourth
15 Amendment rights by preventing plaintiff from retrieving property from his vehicle while it was
16 impounded. (See ECF Nos. 2, 7, 8, 12.)
17 Bradshaw, on the other hand, concerned a request for appointment of counsel in the
18 context of an employment discrimination case brought under the 1964 Civil Rights Act. 662 F.2d
19 1318. While the Bradshaw standard informs the court’s analysis, the standard in Wilborn is more
20 appropriate in this case.
21 The district court in Wilborn denied the request for appointment of counsel and the Ninth
22 Circuit affirmed, explaining:
23 Wilborn has not demonstrated a likelihood of success on the merits.
In addition, we do not find that any difficulty Wilborn experienced
24 in attempting to litigate his case derived from the complexity of the
issues involved. Although discovery was essential in order for
25 Wilborn to learn who had impounded his vehicle and why,
particularly since Cook allegedly misinformed him, the need for such
26 discovery does not necessarily qualify the issues involved as
“complex.” Most actions require development of further facts during
27 litigation and a pro se litigant will seldom be in a position to
investigate easily the facts necessary to support the case. If all that
28 was required to establish successfully the complexity of the relevant
1 issues was a demonstration of the need for development of further
facts, practically all cases would involve complex legal issues. Thus,
2 although Wilborn may have found it difficult to articulate his claims
pro se, he has neither demonstrated a likelihood of success on the
3 merits nor shown that the complexity of the issues involved was
sufficient to require designation of counsel.
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5 | Wilborn, 789 F.2d at 1331.
6 As in Wilborn, plaintiff has not demonstrated a likelihood of success on the merits in this
7 || case. While “the court cannot conclude that plaintiff's complaint is frivolous at this juncture”
g | (ECF No. 9 at 2), the court is equally unable to conclude that plaintiff is likely to succeed on his
9g | claims. Moreover, there is no indication that the complexity of the legal issues involved prevents
10 | plaintiff from articulating his claims, as a pro se litigant. Plaintiff had some initial difficulty
11 | articulating his claims. However, the court twice granted plaintiff leave to amend and directed
12 | service of the second amended complaint. (See ECF No. 9.) Importantly, the case in Wilborn
13 || was more developed and involved more complicated situations than the present matter. For
14 | example, in Wilborn, the parties had already engaged in discovery, 789 F.2d at 1330-31, whereas
15 || here defendants have not even been served. Indeed, plaintiff's next step is to follow the
16 | directions set forth in the court’s July 24, 2019 order directing service—directions that involve
17 | administrative tasks, not complex legal issues. (ECF No. 9 at 3-4.)
18 Accordingly, IT IS HEREBY ORDERED that plaintiffs renewed motion to appoint
19 | counsel (ECF No. 12) is DENIED.
290 | Dated: August 9, 2019
21 Ad
0 KENDALL J.
espana.475.order mot app UNITED STATES MAGISTRATE JUDGE
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