Ruiz v. Arakaki

Filing 53

ORDER DENYING, Without Prejudice, Plaintiff's 52 Motion for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 11/25/2019. (Lundstrom, T)

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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,
v.
L. ARAKAKI, et al.,

Case No. 1:17-cv-01404-AWI-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 52)

Defendants.

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Plaintiff Rogelio May Ruiz is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed on

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November 22, 2019. (ECF No. 52.) Plaintiff asserts that the Court should appoint counsel who

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speaks Spanish to represent and interpret for him in this case because he only speaks Spanish and

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he does not know, or understand, the court rules or terminology.

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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

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional

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circumstances, the court may request the voluntary assistance of counsel pursuant to § 1915(e)(1).

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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

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

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

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“Neither of these considerations is dispositive and instead must be viewed together.” Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id.

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The Court has considered Plaintiff’s request for appointed counsel, but does not find the

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required exceptional circumstances. Initially, circumstances common to most prisoners, such as

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lack of legal education, limited law library access, and lack of funds to hire counsel, do not alone

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establish the exceptional circumstances that would warrant appointment of counsel. Specifically,

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Plaintiff’s apprehension with pursuing this case on his own, while understandable, is not

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sufficient grounds for appointing counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986) (“Most actions require development of further facts during litigation and a pro se

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litigant will seldom be in a position to investigate easily the facts necessary to support the case.”).
Further, “[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

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

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

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Plaintiff’s inability to read and/or write English is not an extraordinary circumstance, and a

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review of the record demonstrates that Plaintiff has been able to communicate and respond to

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court orders.1

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Indeed, the Court takes judicial notice of several cases filed by Plaintiff in which he has litigated in English,
whether by use of a translator or otherwise. See Ruiz v. Oliveira, No. 17-cv-1914-DMS (NLS) (S.D. Cal.); Ruiz v.
McGuire, No. 16-cv-0388-AJB-BLM (S.D. Cal.); Ruiz v. Curry, No. 17-cv-01407-DAD-SKO (E.D. Cal.); and Ruiz
v. Curry, No. 17-cv-01454-DAD-SAB (E.D. Cal.).

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Accordingly, Plaintiff’s third motion for appointment of counsel, (ECF No. 52), is

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HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

November 25, 2019
UNITED STATES MAGISTRATE JUDGE

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