Opinion
07 Civ. 8273 (LTS) (KNF).
October 31, 2007
MEMORANDUM and ORDER
Mohamed A. Saleh ("Saleh") commenced this action pro se seeking relief from a determination reached by the Commissioner of Social Security regarding Saleh's Application for Help with Medicare Prescription Drug Plan Costs. The defendant found that the plaintiff's "countable income is above the limit established by law" for eligibility to receive a subsidy pursuant to the Medicare Prescription Drug Program. Saleh has made an application to the Court that counsel be appointed to assist him in connection with the instant action. In that application, Saleh has advised that he has not "looked [for counsel to assist him] because I cannot afford one."
Unlike criminal defendants, an indigent person, such as Saleh, filing a civil action has no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the court may request an attorney to represent any person unable to afford counsel. The plaintiff made an application to proceed in forma pauperis, which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks. However, it is incumbent upon a person who requests, as Saleh does, that the Court appoint counsel for him in a civil matter to make some effort to engage counsel and, thereafter, be prepared to advise the Court of that effort so that the Court may weigh this in determining whether, in the circumstance of any particular case, appointing counsel for the person is warranted. Where, in a civil action, an applicant for appointment of counsel fails to make any effort to engage counsel, appointing counsel for the applicant would not be appropriate. See Abukar v. Commissioner of Social Security, No. 07 CV 1770, 2007 WL 2729858, at *2 (S.D. Cal. Sept. 19, 2007).
In the case at bar, Saleh has advised the Court that he has made no effort to find an attorney to represent him. This militates against granting his application for court-appointed counsel. In addition, in cases brought pursuant to 42 U.S.C. § 405, such as the instant action, the Court is aware that it is not uncommon for counsel to bring such an action on behalf of a plaintiff on a 25% contingency fee bases. This factor also militates against granting Saleh's application for it is likely that he might, if he attempted to do so, find an attorney willing to undertake responsibility for prosecuting this action on Saleh's behalf on a contingency fee basis. Thus, Saleh's indigence may very likely pose no impediment to his engaging counsel to represent him in connection with this matter.
For the reasons set forth above, the plaintiff's application for the Court to appoint counsel to represent him is denied.
SO ORDERED: