United States District Court, D. New Mexico
ANTOINETTE R. MEDINA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER DENYING MOTION FOR APPOINTMENT OF
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's
Motion to Appoint Counsel (the
“Motion”), (Doc. 3), filed August 8, 2018. The
Court, having reviewed the Motion, record of the case, and
relevant law, finds the Motion is not well-taken and should
be DENIED WITHOUT PREJUDICE.
August 8, 2018, Ms. Medina filed a complaint against the
Social Security Administration (the “SSA”),
claiming that her medical condition had declined and the
Appeals Council wrongly denied her supplemental security
income (“SSI”). (Doc. 1 at 2). On August 13,
2018, the Court granted Ms. Medina's Motion for Leave
to Proceed in forma pauperis. (Doc. 6). Next, on
September 27, 2018, the Court ordered service of process on
the SSA. (Doc. 8). In her present Motion, Ms. Medina now asks
the Court to appoint her counsel. (Doc. 3).
is no Sixth Amendment right to the appointment of counsel in
a civil case. Beaudry v. Corr. Corp. of Am., 331
F.3d 1164, 1169 (10th Cir. 2003). Therefore, it is the
plaintiff who bears the burden of proving that the
appointment of counsel is warranted. Martinez v.
True, 128 Fed.Appx. 714, 716 (10th Cir. 2005)
(unpublished) (citing Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
final decision to appoint counsel ultimately rests in the
sound discretion of the court. See McCarthy v.
Weinberg, 753 F.2d 836, 839-40 (10th Cir. 1985). In
making this determination, the court should consider the
merits of the plaintiff's claim, the nature and
complexity of the factual and legal issues, and the
plaintiff's ability to investigate the facts and
adequately present her claim. Hill, 393 F.3d at
1115. In addition, the court may consider the plaintiff's
ability to afford counsel and her diligence in searching for
counsel independently, before asking the court to make the
appointment for her. Castner v. Colo. Springs
Cabledivision, 979 F.2d 1417, 1420-21 (10th Cir. 1992).
The court should analyze these considerations in light of the
totality of the circumstances. McCarthy, 753 F.2d at
839-40. This analysis includes a final determination that the
lack of counsel does not result in fundamental unfairness to
the plaintiff. Id.; see also Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
Court has reviewed Ms. Medina's Motion to Appoint
Counsel, (Doc. 3), and her former filings in light of
the foregoing factors. Notably, Ms. Medina is proceeding
in forma pauperis, and has therefore already
demonstrated that she is unable to pay attorney's fees at
this time. See (Doc. 6). Unlike other civil cases,
however, social security attorneys often require no payment
from the plaintiff unless a verdict is returned in the
plaintiff's favor. See Soc. Sec. Basics,
Nat'l Org. of Soc. Sec. Claimants' Reps.,
https://nosscr.org/social-security-basics#39 (last visited
Sept. 26, 2018). In addition, attorney's fees may be paid
by the government pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412, or may be covered by the
plaintiff's award of back pay. Id. Therefore,
Ms. Medina's inability to pay does not preclude her from
privately securing counsel.
the Court has considered Ms. Medina's own diligence in
securing counsel. In her complaint, Ms. Medina states that
she was previously represented by an attorney at the
administrative level, but her former attorney will not be
representing her in the present case. (Doc. 1 at 2). However,
Ms. Medina has not demonstrated to the Court that she has
made any subsequent efforts to secure alternative counsel.
Indeed, in Ms. Medina's Motion to Appoint
Counsel, she states only: “I Antoinette R. Medina
would like appointment for counsel.” (Doc. 3). From her
Motion, it is unclear whether Ms. Medina has contacted other
law firms or organizations in an attempt to secure counsel.
are numerous attorneys and law firms that specialize in
social security appeals and many that take cases on a
contingency-fee basis. In addition, there are resources for
Ms. Medina to find pro bono counsel, such as the State Bar of
New Mexico, (1-800-876-6227), and the National Organization
of Social Security Claimants' Representatives,
(1-800-431-2804). The Court will also direct the Clerk to
send Ms. Medina a “Guide for Pro Se Litigants, ”
which contains a list of local pro bono attorneys. See
Guide for Pro Se Litigants, at 5. Thus, because it is
unclear whether Ms. Medina has pursued any of these potential
forms of representation, the Court is not satisfied that she
has displayed a diligent effort in seeking counsel.
the Court has no information regarding the merits of Ms.
Medina's claim. The only facts that can be deduced from
Ms. Medina's complaint are: (1) that her social security
claim was denied at the administrative level; and (2) that
she no longer has an attorney. (Doc. 1 at 2). Therefore, the
Court is unable to evaluate the merits of Ms. Medina's
claim and cannot adequately analyze whether counsel's
appointment is necessary to avoid fundamental unfairness.
on the foregoing, the Court finds that Ms. Medina has not
demonstrated that appointment of counsel is warranted at this
time. Accordingly, the Court will deny the Motion without
prejudice. As a final note, the Court reminds Ms. Medina that
as a pro se litigant, she is bound by the rules of the Court,
specifically the Federal Rules of Civil Procedure and the
Local Rules of Civil Procedure.
IS THEREFORE ORDERED that Plaintiffs Motion to
Appoint Counsel, (Doc. 3), is DENIED WITHOUT
IS FURTHER ORDERED that the Clerk send copies of the
“Guide for Pro Se Litigants” and the Local ...