(PC) Rodriguez v. Henry et al
ORDER signed by Magistrate Judge Jeremy D. Peterson on 2/17/21 DENYING 3 Motion to Appoint Counsel. (Kaminski, H)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
D. HENRY, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel
and/or an interpreter, ECF No. 3.
The United States Supreme Court has ruled that district courts lack authority to
require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist.
Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the
voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success
on the merits and the ability of the plaintiff to articulate his claims on his own in light of the
complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is
dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the
Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment
of counsel because:
. . . 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
circumstances. Plaintiff’s motion states in English that he requires the assistance of counsel or an
interpreter because he speaks only Spanish. The Court finds that this is not an exceptional
circumstance given the number of California inmates who do not speak English. Moreover, it
appears from Plaintiff’s filing that he has access to the assistance in translations and preparation
of documents. Plaintiff is also advised that he may be able to obtain translation assistance
through the prison’s litigation coordinator. Moreover, while the law provides for court-appointed
interpreters in judicial proceedings instituted by the United States, See 28 U.S.C. § 1827(a), the
current action is not such a proceeding and there is no corresponding provision in the law for civil
action instituted by private individuals. Finally, the Eighth Amendment cruel and unusual
punishment claims raised in this action are neither sufficiently legally nor factually complex to
warrant the appointment of counsel.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel and/or an interpreter, ECF No. 3, is denied.
Dated: February 17, 2021
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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