Gazave v. Superior Court of California, Family Court
Filing
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ORDER by Magistrate Judge Howard R. Lloyd denying 5 Motion to Appoint Counsel. (hrllc2, COURT STAFF) (Filed on 8/28/2012)
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*E-FILED: August 28, 2012*
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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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MICHELLE GAZAVE,
No. C12-03838 HRL
Plaintiff,
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ORDER DENYING MOTION TO
APPOINT COUNSEL
v.
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SUPERIOR COURT FAMILY COURT
DIVISION,
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Defendant.
[Re Docket No. 5]
/
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Presently before the court is Michelle Gazave’s motion for the appointment of counsel.1
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Generally, there is no right to counsel in a civil case. See Lassiter v. Dep’t of Social Services,
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452 U.S. 18, 25 (1981). However, courts have discretion to request volunteer counsel for
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indigent civil litigants upon a showing of exceptional circumstances. See 28 U.S.C. §
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1915(e)(1) (“The court may request an attorney to represent any person unable to afford
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counsel”); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (“The court may
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appoint counsel under section 1915[(e)(1)] . . . only under ‘exceptional circumstances’”).
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Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, Gazave has expressly
consented that all proceedings in this matter may be heard and finally adjudicated by the
undersigned. There is no indication in the docket that defendant has been served. Unserved
defendants are not deemed to be “parties” to the action within the rules requiring consent to
magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995); see
also Merino v. Saxon Mortgage, Inc., No. C10-05584, 2011 WL 794988 at *1, n. 1 (N.D.
Cal., Mar. 1, 2011) (Laporte, J.) (same).
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To ascertain whether exceptional circumstances exist, the court must determine (1) the
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likelihood of success on the merits and (2) the ability of the plaintiff to articulate her claims pro
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se in light of the complexity of the legal issues involved. Terrell, 935 F.2d at 1017. Both of
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these factors must be viewed together before reaching a decision on a request for counsel under
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§ 1915. See id.
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Exceptional circumstances do not exist here. The issues Gazave raises do not appear to
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be particularly complex. And, in any event, for the reasons stated in its separate order of
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dismissal, the court finds that her complaint seeks relief from a defendant that is immune from
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liability and that the deficiencies in her pleading cannot be resolved by amendment.
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For the Northern District of California
United States District Court
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Accordingly, the motion to appoint counsel is denied.2
Dated: August 28, 2012
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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE
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Gazave has not provided the court with any contact information, and she says
that she is homeless. Having no other means to reach her, the court will send its orders to
plaintiff at the address she provided in a prior lawsuit concerning her divorce proceedings.
See C11-03070RMW Gazave v. Yomtov.
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5:12-cv-03838-HRL Notice sent by U.S. Mail to:
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Michelle Gazave
207 Pecan Grove Court
San Jose, CA 95137
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For the Northern District of California
United States District Court
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