Ruiz v. Arakaki

Filing 45

ORDER DENYING Plaintiff's 44 Motion to Appoint Counsel, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 11/15/18. (Marrujo, C)

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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.
L. ARAKAKI, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 44]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for appointment of counsel, filed November

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Case No. 1:17-cv-01404-AWI-SAB (PC)

Plaintiff Rogelio May Ruiz is appearing pro se and in forma pauperis in this civil rights action

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14, 2018.

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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), and the court cannot require any attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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). The test for exceptional

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circumstances requires the Court to evaluate the Plaintiff’s likelihood of success on the merits and the

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ability of the Plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718

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F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel.
In this instance, Plaintiff requests counsel because he does not speak English and speaks only

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Spanish. However, “[a]n inability to speak, write and/or under English, in and of itself, does not

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automatically give a [inmate] reasonable cause for failing to know about the legal requirements for

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filing his claims.” Hernandez v. Soto, No. CV 15-01374-PSG (AS), 2015 WL 5553543, at *7 (C.D.

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Cal. Sept. 14, 2015) (quoting Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)). Plaintiff’s

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inability to read and/or write English is not an extraordinary circumstance, and a review of the record

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demonstrates that Plaintiff has been able to communicate and respond to court orders. Accordingly,

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Plaintiff’s motion for appointment of counsel is denied, without prejudice.

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IT IS SO ORDERED.

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Dated:

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November 15, 2018
UNITED STATES MAGISTRATE JUDGE

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