Ortiz v. Georgia Pacific
Filing
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ORDER DENYING Plaintiff's 5 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/12/2012. (Bradley, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE A. ORTIZ,
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Plaintiff,
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v.
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GEORGIA PACIFIC,
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Defendant.
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_____________________________________ )
1:12-cv-1033 LJO GSA
ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL
(Document 5)
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Plaintiff Jose A. Ortiz is proceeding pro se in this civil action for employment
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discrimination. On July 9, 2012, Plaintiff filed a pleading entitled “Attorney Representation”
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(Doc. 5), wherein he asks the Court to appoint an attorney to represent him in this matter.
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More particularly, Plaintiff’s pleading indicates that he has contacted an unspecified
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number of attorneys about his case following receipt of the right to sue letters, however, none
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would offer to represent him unless he paid “$400.00 an hour up front.” Plaintiff also indicates
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he was further hampered in his efforts because he is not current working, rather, he is recovering
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from surgery performed in December 2011. (Doc. 5 at 2.)
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Title 28 of the United States Code section 1915(e)(1) provides: “The court may request
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an attorney to represent any person unable to afford counsel.” Nevertheless, “it is
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well-established that there is generally no constitutional right to counsel in civil cases.” United
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States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp.
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(In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994)). There is also no constitutional right to
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appointed counsel to pursue a Title 42 of the United States Code section 1983 claim. Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353
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(9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Federal courts do
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not have the authority “to make coercive appointments of counsel.” Mallard v. United States
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District Court for the Southern District of Iowa, 490 U.S. 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d
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318 (1989) (discussing § 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 54
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F.3d 564, 569 (9th Cir. 1995). Appointment of counsel by the court is discretionary, not
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mandatory. United States v. $292,888.04 in U.S. Currency, 54 F.3d at 569.
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In this case, as explained above, Plaintiff is not entitled to the assistance of counsel in his
civil action.
Appointment of counsel may be made if a court finds that there are exceptional
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circumstances after evaluating the likelihood of success on the merits and the ability of the party
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to articulate his or her claims pro se in light of the complexity of the legal issues involved; the
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factors must be viewed together. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citing
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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). The Court cannot require an
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attorney to represent Plaintiff. Mallard v. United States District Court for the Southern District
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of Iowa, 490 U.S. at 298. Rather, the Court will seek volunteer counsel only in the most serious
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and exceptional cases.
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In light of the stage of the proceedings, the Court is unable to make a determination that
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Plaintiff is likely to succeed on the merits. Terrell v. Brewer, 935 F.2d at 1017. Morever, and
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significantly, this case does not appear to be particularly complex. Plaintiff’s complaint asserts a
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claim of employment discrimination in the form of sexual harassment by a coworker during the
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period between June 2010 and December 2011. (See Doc. 1.)
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This Court does not find the required exceptional circumstances. Even if it is assumed
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that Plaintiff is not well versed in the law and that he has made serious allegations which, if
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proved, would entitle him to relief, the case is not exceptional.
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Accordingly, Plaintiff’s request or motion for appointment of counsel is DENIED.
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IT IS SO ORDERED.
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Dated:
6i0kij
July 12, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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