Cortinas v. Gill, Jr. et al

Filing 48

ORDER DENYING Plaintiff's 44 Motion to Appoint Counsel signed by Magistrate Judge Helena M. Barch-Kuchta on 8/23/2021. (Marrujo, C)

Case 1:18-cv-00515-NONE-HBK Document 48 Filed 08/23/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY WILLIAMS CORTINAS,

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Plaintiff,

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Case No. 1:18-cv-00515-NONE-HBK (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL

v.
(Doc. No. 44)

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RAVIJOT GILL, JR., et al.,

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Defendants.

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This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 34).1

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Pending before the Court, inter alia, is Plaintiff’s motion to appoint counsel filed May 21, 2021.

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(Doc. No. 44). Plaintiff Larry Williams Cortinas is currently incarcerated within a California state

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prison and is proceeding pro se on his civil rights complaint as screened. (Doc. No. 17). Plaintiff

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is proceeding in forma pauperis. (Doc. No. 12).
The United States Constitution does not require appointment of counsel in civil cases. See

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Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not

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create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this Court has

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discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a

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Due to an internal anomaly in CMCEF, the pending motions were not reassigned to the undersigned until
08/23/2021.

Case 1:18-cv-00515-NONE-HBK Document 48 Filed 08/23/21 Page 2 of 3
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civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for

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people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir.

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1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other

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citations omitted). However, motions to appoint counsel in civil cases are granted only in

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“exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if

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exceptional circumstances warrant appointment of counsel including, but not limited to, proof of

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indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his

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or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en

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banc, 154 F.2d 952 (9th Cir. 1998).
Plaintiff states that he requires appointment of counsel because the claims raised in the

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complaint are medical in nature and require the testimony of an expert. (Doc. No. 44 at 1).

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Plaintiff also claims that he has been suffering retaliation by prison staff for filing his federal

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complaint. (Id.). Plaintiff also makes unrelated claims regarding his medication, his hunger

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strike, and a request for telemedicine care.

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Prison litigation often involves medical claims, and an extraordinary situation cannot be

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demonstrated through the “vicissitudes of prison life.” Chaffer v. Prosper, 592 F.3d 1046, 1049

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(9th Cir. 2010). Further, although plaintiff is proceeding pro se and is incarcerated, he faces the

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same obstacles all pro se prisoners face. Challenges in litigating a case, such as the need for an

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expert witness, “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis

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for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24,

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2020). Finally, the Court does not find the issues are “so complex that due process violations will

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occur absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993).

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Plaintiff has capably filed motions and his complaint has plausibly stated a claim to

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survive screening and be served on Defendants. Plaintiff has not shown exceptional

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circumstances that warrant appointment of counsel at this stage of the proceedings. Should this

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case progress and Plaintiff’s circumstances change so that he is able to demonstrate exceptional

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circumstances, he may renew his motion for appointment of counsel at that time.
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Case 1:18-cv-00515-NONE-HBK Document 48 Filed 08/23/21 Page 3 of 3
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Accordingly, it is ORDERED:

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Plaintiff’s motion to appoint counsel (Doc. No. 44) is DENIED without prejudice.

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Dated:

August 23, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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