United States District Court, D. Rhode Island
JONATHAN J. RODRIGUEZ ARAGONES, Plaintiff,
MICHAEL R. POMPEO, SECRETARY, DEPARTMENT OF STATE, AGENCY, Defendant.
MEMORANDUM AND ORDER DENYING MOTION FOR
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
February 5, 2019, Plaintiff Jonathan J. Rodriguez Aragones
filed a pro se complaint against Defendant, Michael
R. Pompeo, Secretary, Department of State, Agency. ECF No. 1.
Along with his complaint, Plaintiff filed a motion for leave
to proceed in forma pauperis (“IFP”) and
a motion for appointment of counsel. ECF Nos. 2, 3. Accepting
as true Plaintiff's IFP representations under oath that
he is homeless, earned only $82 in January and owns nothing,
including no real estate and no vehicles, except for a de
minimis sum in two bank accounts, the Court granted
Plaintiff's IFP motion. Still pending is his motion for
appointment of counsel, which has been referred to me for
is no constitutional right to free counsel in a civil case.
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.
1991); see Maroni v. Pemi-Baker Reg'l Sch.
Dist., 346 F.3d 247, 257 (1st Cir. 2003); King v.
Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998);
Barkmeyer v. Wall, C.A. No. 09-430S, 2009 WL
3046326, at *1 (D.R.I. Sept. 22, 2009). Further, there is no
funding mechanism for appointed counsel in civil cases;
therefore, the matter is subject to the district court's
broad discretion, to be exercised in light of the
difficulties in rationing the precious resource of volunteer
lawyer services. Sai v. Transp. Sec. Admin., 843
F.3d 33, 35 (1st Cir. 2016). “To qualify for this
scarce resource, a party must be indigent and exceptional
circumstances must exist such that the denial of counsel will
result in fundamental unfairness impinging on the party's
due process rights.” Choksi v. Trivedi, 248
F.Supp.3d 324, 328 (D. Mass. 2017) (citing
DesRosiers, 949 F.2d at 23); see Cookish v.
Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (“an
indigent litigant must demonstrate exceptional circumstances
in his or her case to justify the appointment of
counsel”). To determine whether there are exceptional
circumstances sufficient to warrant the appointment of
counsel, “a court must examine the total situation,
focusing, inter alia, on the merits of the case, the
complexity of the legal issues, and the litigant's
ability to represent himself.” DesRosiers, 949
F.2d at 24. Just because a plaintiff alleges sufficient facts
to state a claim in the complaint does not in and of itself
require the appointment of counsel. Cookish, 787
F.2d at 2-3; Childs v. Duckworth, 705 F.2d 915, 922
(7th Cir. 1983).
stage, the situation of the case compels the conclusion that
it is far from presenting exceptional circumstances that
would justify the appointment of counsel. For starters, it
appears to have been brought in the wrong venue. The only
link to the District of Rhode Island is Plaintiff's
allegation that the “events . . . occurred while the
Plaintiff lived in Providence, Rhode Island, ” ECF No.
1 at 3, yet the pleading's detailed exposition of the
facts never mentions Rhode Island. See 28 U.S.C.
§ 1391(b); 42 U.S.C. § 2000e-5(f)(3). The Court
ultimately determined that, in light of the complexity of
Plaintiff's allegations and his pleading of continuous
residence in Rhode Island, the truth of which is assumed,
improper venue alone was insufficient for dismissal without
prejudice before Defendant was served pursuant to 28 U.S.C.
§ 1915. This deficiency required careful scrutiny
of Plaintiff's filing and was a reason why there was a
substantial delay before the IFP motion was granted. It
remains a reason why this case may not survive long in this
District. Second, Plaintiff's complaint is coherent
suggesting that, at least at this stage, he is well able to
represent himself. Nor does his motion suggest any other
unusual circumstances that would warrant the appointment of a
pro bono attorney.
extraordinary circumstances to justify an appointment from
the Court's pro bono panel at this early stage
of the proceedings and with the open issue of venue to be
resolved, Plaintiff's motion for appointment of counsel
(ECF No. 3) is denied without prejudice to being made again
if circumstances change.
 The Third Circuit had held that venue
alone is never enough to dismiss at screening. Fiorani v.
Chrysler Grp., 510 Fed.Appx. 109, at *2-3 (3d Cir. 2013)
(courts generally should not dismiss in forma
pauperis complaints at screening for improper venue
only). Other courts disagree. See, e.g., Lea v. Warren
Cty., No. 16-5329, 2017 WL 4216584, at *2 (6th Cir. May
4, 2017) (after leave to amend, no error in dismissal for
improper venue); Johnson v. Christopher, 233
Fed.Appx. 852, at *1-2 (10th Cir. 2007) (§ 1915(e)
permits sua sponte dismissal based on improper
venue); Perrin v. TRW Info. Servs., 990 F.2d 1259,
at *1 (9th Cir. 1993) (table decision) (as long as dismissal
is without prejudice, no error in pre-service dismissal);
Cox v. Rushie, C.A. No. 13-11308 PBS, 2013 WL
3197655, at *4 (D. Mass. June 8, 2013) (complaint dismissed
at screening based on improper venue).
 To the contrary, the motion relies
only on the inaccurate representation that “[t]he court
has already approved the plaintiff's application to file
the matter in forma pauperis.” ECF No. 3. Mindful of
the leniency due to pro se filings, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), ...