Ruiz v. Mobert

Filing 17

ORDER Regarding Plaintiff's Objections to Order; ORDER Denying Plaintiff's Motion for Appointed Counsel, without Prejudice, re 14 , signed by Magistrate Judge Barbara A. McAuliffe on 9/14/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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Plaintiff,

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v.

ORDER REGARDING PLAINTIFF’S
OBJECTIONS TO ORDER
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTED COUNSEL, WITHOUT
PREJUDICE

R. MOBERT,

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Case No.: 1:17-cv-00709-AWI-BAM (PC)

Defendant.
(ECF No. 14)

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I.

Introduction

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Plaintiff Rogelio May Ruiz is a state prisoner proceeding pro se in this civil action

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pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
On May 23, 2017, the Court issued an order denying Plaintiff’s motion for an interpreter.

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(ECF No. 8.) Currently before the Court are Plaintiff’s objections to that order. (ECF No. 14.)

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II.

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Request for Appointed Counsel
Plaintiff states that he seeks the appointment of bilingual, Spanish-speaking counsel, as he

does not speak or write in English.

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Plaintiff does not have a constitutional right to appointed counsel in this action. Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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n.1 (9th Cir. 1998). The Court cannot require an attorney to represent Plaintiff pursuant to 28

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

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490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional circumstances,

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court

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

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

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

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the complexity of the 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. The

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record reflects that Plaintiff cannot read or write in the English language. However, Plaintiff’s

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recent submissions, including the current motion, have all been translated into English by an

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unnamed translator. Plaintiff does not explain under what circumstances he has access to such a

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translator, or whether he can be accommodated to obtain translation assistance through his

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institution or with the assistance of other inmates. Without this information, the Court cannot

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conclude that exceptional circumstances exist. The Court has also not yet screened Plaintiff’s

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complaint, and therefore cannot make a determination that Plaintiff is likely to succeed on the

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merits. Plaintiff’s complaint will be screened in due course.
Therefore, Plaintiff’s request for appointed counsel is denied, without prejudice.

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III.

Petition for Writ of Mandamus

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Plaintiff also seeks an order by writ of mandamus regarding his legal property, which he

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has not received since being transferred. The federal mandamus status provides: “The district

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courts shall have original jurisdiction of any action in the nature of mandamus to compel an

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officer or employee of the United States or any agency thereof to perform a duty owed to the

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plaintiff.” 28 U.S.C. § 1361. Mandamus relief is an extraordinary remedy, however. It is available

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to compel a federal officer to perform a duty only if: (1) the plaintiff’s claim is clear and certain;

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(2) the duty of the officer is ministerial and so plainly prescribed as to be free from doubt; and (3)

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no other adequate remedy is available. See Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986).

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Plaintiff states that his property is being held by state officials, not a federal official, and
therefore no writ may be issued regarding his request. See Demons v. U.S. District Court, 925
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F.2d 1160, 1161-62 (9th Cir. 1991) (a petition for mandamus to compel a state court or official to

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take or refrain from some action is frivolous as matter of law). Further, Plaintiff states that he has

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just recently been transferred to a new facility, and is currently being held in ASU. Plaintiff’s

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property may be in the process of being transferred to him as part of the regular procedures.

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Plaintiff should request his property when he is able to, and may inform the Court if necessary if

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he does not receive legal property needed for prosecuting this action.

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IV.

Conclusion and Order

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For the reasons explained above, it is HEREBY ORDERED that:

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1.

Plaintiff’s objections to the Court’s May 23, 2017 order are overruled;

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2.

Plaintiff’s request for the appointment of counsel is denied, without prejudice; and

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3.

Plaintiff’s petition for a writ of mandamus is denied.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 14, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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