Ortiz v. Avenal State Prison et al

Filing 31

ORDER DENYING PLAINTIFF'S SECOND 30 Motion to Appoint Counsel, WITHOUT PREJUDICE, signed by Magistrate Judge Stanley A. Boone on 07/20/2015. (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 SECOND
MOTION FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 30]

Plaintiff Enrique Ortiz is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s second motion for appointment of counsel, filed

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July 17, 2015. Plaintiff previously filed a motion for appointment of counsel, which was denied

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without prejudice on January 30, 2015. (ECF Nos. 24, 25.)

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As Plaintiff was previously advised, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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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).
In the present case, the Court does not find the required exceptional circumstances. Plaintiff

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seeks appointment of counsel because his imprisonment limits his ability to litigate this action, the

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issues are complex, conflicting testimony may be presented at trial, and lack of knowledge of the law.

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The Court finds these reasons for requesting appointment of counsel indistinguishable from the

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reasons asserted by most prisoners. Nor are the issues in this complex-the complaint alleges a succinct

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and straightforward claim of sexual harassment in violation of the Eighth Amendment against

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Defendant Marmolejo. Thus, Plaintiff has failed to meet his burden of demonstrating exceptional

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circumstances warranting appointment of counsel. Accordingly, Plaintiff’s request is DENIED

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without prejudice.

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IT IS SO ORDERED.

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Dated:

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July 20, 2015
UNITED STATES MAGISTRATE JUDGE

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