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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ENRIQUE ORTIZ,

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Plaintiff,
v.
AVENAL STATE PRISON, et al.,
Defendants.

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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

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have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. §

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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,

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298 (1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the court does not find the required exceptional circumstances. Even if it

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assumed 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, his case is not exceptional. Plaintiff alleges an Eighth Amendment

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claim against Defendant Marmolego regarding a strip search. The legal issues present in this action

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are not complex, and Plaintiff has thoroughly set forth his allegations in the complaint. At this early

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stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on

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the merits, and based on a review of the record in this case, the Court does not find that plaintiff

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cannot adequately articulate his claims. Id. In addition, circumstances common to most prisoners,

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such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that warrant a request for voluntary assistance of counsel.
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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January 30, 2015
UNITED STATES MAGISTRATE JUDGE

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