(PC) Rodriguez v. Henry et al

Filing 11

ORDER signed by Magistrate Judge Jeremy D. Peterson on 2/17/21 DENYING 3 Motion to Appoint Counsel. (Kaminski, H)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JULIAN RODRIGUEZ, 12 13 14 15 No. 2:20-CV-1659-JAM-DMC-P Plaintiff, v. ORDER D. HENRY, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel 19 and/or an interpreter, ECF No. 3. 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 22 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 24 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 26 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 27 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 28 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 1 1 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 of counsel because: 3 4 5 6 7 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. Id. at 1017. In the present case, the Court does not at this time find the required exceptional 8 circumstances. Plaintiff’s motion states in English that he requires the assistance of counsel or an 9 interpreter because he speaks only Spanish. The Court finds that this is not an exceptional 10 circumstance given the number of California inmates who do not speak English. Moreover, it 11 appears from Plaintiff’s filing that he has access to the assistance in translations and preparation 12 of documents. Plaintiff is also advised that he may be able to obtain translation assistance 13 through the prison’s litigation coordinator. Moreover, while the law provides for court-appointed 14 interpreters in judicial proceedings instituted by the United States, See 28 U.S.C. § 1827(a), the 15 current action is not such a proceeding and there is no corresponding provision in the law for civil 16 action instituted by private individuals. Finally, the Eighth Amendment cruel and unusual 17 punishment claims raised in this action are neither sufficiently legally nor factually complex to 18 warrant the appointment of counsel. 19 20 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the appointment of counsel and/or an interpreter, ECF No. 3, is denied. 21 22 23 Dated: February 17, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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