Ortiz v. Avenal State Prison et al

Filing 25

ORDER DENYING Plaintiff's 24 Motion to Appoint Counsel, without prejudice, signed by Magistrate Judge Stanley A. Boone on 01/30/2015. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ENRIQUE ORTIZ, 12 13 14 15 Plaintiff, v. AVENAL STATE PRISON, et al., Defendants. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-00959-SAB (PC) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE [ECF No. 24] Plaintiff Enrique Ortiz is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 29, 2015, Plaintiff filed a motion for the appointment of counsel. Plaintiff does not 20 have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 21 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. § 22 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 23 298 (1989). However, in certain exceptional circumstances the court may request the voluntary 24 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 28 1 1 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 2 legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the court does not find the required exceptional circumstances. Even if it 4 assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 5 proved, would entitle him to relief, his case is not exceptional. Plaintiff alleges an Eighth Amendment 6 claim against Defendant Marmolego regarding a strip search. The legal issues present in this action 7 are not complex, and Plaintiff has thoroughly set forth his allegations in the complaint. At this early 8 stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on 9 the merits, and based on a review of the record in this case, the Court does not find that plaintiff 10 cannot adequately articulate his claims. Id. In addition, circumstances common to most prisoners, 11 such as lack of legal education and limited law library access, do not establish exceptional 12 circumstances that warrant a request for voluntary assistance of counsel. For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY 13 14 DENIED, without prejudice. 15 16 IT IS SO ORDERED. 17 Dated: 18 January 30, 2015 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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