Mendoza v. Makah Tribal Court
Filing
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ORDER granting 1 Motion for Leave to Proceed in forma pauperis and for appointment of counsel, signed by Judge Ronald B. Leighton.(DN) Modified on 11/2/2012 (DN). (cc to pltf) (copy sent to Natalie Harmon)
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HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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JOSE LUIS MENDOZA
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Petitioner,
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v.
MAKAH TRIBAL COURT,
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Respondent.
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ORDER - 1
Case No. 12-CV-5483-RBL
ORDER APPOINTING COUNSEL
AND IN FORMA PAUPERIS
STATUS
(Dkt. #1)
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Before the Court is Petitioner’s application for in forma pauperis status and motion for
2 appointment of counsel (Dkt. #1).
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APPLICATION FOR IN FORMA PAUPERIS STATUS
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A district court may permit indigent litigants to proceed in forma pauperis upon
5 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad
6 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil
7 actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th
8 Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed
9 in forma pauperis at the outset if it appears from the face of the proposed complaint that the
10 action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369
11 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis
12 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v.
13 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.
14 1984).
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Plaintiff has established indigency, and the motion (Dkt. #1) is GRANTED.
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MOTION TO APPOINT COUNSEL
Whenever a court determines that the interests of justice so require, representation may
18 be provided for any financially eligible person who is seeking habeas relief. See 18 U.S.C.
19 §3006A(a)(2). In order to be entitled to appointed counsel, a habeas petitioner must show that
20 appointed counsel is necessary to prevent due process violations. Roe v. Coursey, 469 F. App’x
21 622, 624 (9th Cir. 2012). Although the Ninth Circuit has not articulated what factors courts must
22 consider when determining if appointed counsel is necessary to prevent due process violations in
23 habeas actions, the Eighth Circuit has utilized the standards set forth pursuant to 28 U.S.C.
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ORDER - 2
1 §1915(e) when determining if counsel should be appointed in habeas actions. Nachtigall v.
2 Class, 48 F.3d 1076, 1081–82 (8th Cir. 1995) (“Factors bearing on this determination include:
3 the factual complexity of the issues; the ability of an indigent to investigate the facts; the
4 existence of conflicting testimony; the ability of an indigent to present his claim; and the
5 complexity of the legal issues.”). The Ninth Circuit considers similar factors under 28 U.S.C.
6 § 1915(e). Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
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Here, the legal and factual issues are complex, a there are several procedural issues that
8 appear difficult to resolve even with a thorough review of the case records. Appointment of
9 counsel is thus appropriate. Accordingly, Petitioner’s Motion for Appointment of Counsel (Dkt.
10 #1) is GRANTED.
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Dated this 2nd day of November 2012.
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A
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Ronald B. Leighton
United States District Judge
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ORDER - 3
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