Ruiz v. Romero

Filing 36

ORDER Denying (ECF No. 35 ) Plaintiff's Third Motion to Appoint Counsel. Signed by Magistrate Judge Mitchell D. Dembin on 4/12/2019. (All non-registered users served via U.S. Mail Service)(tcf)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

Case No.: 18cv330-DMS-MDD
Plaintiff,

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v.

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L. ROMERO, et al.,
Defendant.

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ORDER DENYING PLAINTIFF'S
THIRD MOTION TO APPOINT
COUNSEL
[ECF No. 35]

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis

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with a civil rights action under 42 U.S.C. § 1983. (ECF No. 1). On April 1,

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2019, Plaintiff submitted 25 pages of documents including a handwritten

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request for counsel, copies of Plaintiff’s CDCR Form-22 Requests and Form

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602 Complaint. (ECF No. 35). Plaintiff also submitted some documents that

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relate to his administrative appeal and his Mental Health Treatment Plan.

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(Id.). Approximately 15 of the pages submitted are illegible or in Spanish.

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(Id. at 4-15, 17-18, 22). Plaintiff requests appointment of counsel and

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appears to allege various errors in his administrative complaint process. (Id.

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at 1-4). The Court construes Plaintiff’s submission as a third motion

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requesting appointed counsel. For the following reasons, Plaintiff’s motion is

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DENIED.
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18cv330-DMS-MDD

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Plaintiff previously requested and was denied appointed counsel on

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January 25, 2019, and March 27, 2019. (ECF Nos. 26, 27, 33). Plaintiff bases

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his third request for appointment of counsel on the same facts as his first two

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requests. Specifically, Plaintiff requests appointed counsel because he only

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speaks Spanish and is unable to “litigate or understand [ ] court rules or

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terminology.” (ECF No. 35 at 2).

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The United States Supreme Court has ruled that district courts lack

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authority to require counsel to represent indigent prisoners in § 1983 cases.

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Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate

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the plaintiff’s likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal

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issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986). Circumstances common to most prisoners, such as lack of legal

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education, do not establish exceptional circumstances that would warrant a

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request for voluntary assistance of counsel.

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The Court continues to be sympathetic to Plaintiff’s difficulties with the

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English language and lack of familiarity with the legal system. However, it

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appears he has some understanding of English and “the court does not have

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the resources to appoint counsel for every prisoner with limited English

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language and reading skills who files a civil rights action.” Nguyen v. Bartos,

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No. 2:10-cv-1461 WBS KJN P, 2012 WL 3589797, at *2 (E.D. Cal. Aug. 20,

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2012). Plaintiff has provided no new evidence or facts different from his prior
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18cv330-DMS-MDD

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requests to demonstrate that he now meets the exceptional circumstances

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required for the Court to appoint counsel.

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Finally, the Court notes that Plaintiff appears to be concerned that

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Defendants have or will take the deposition of non-party witness Armando

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Perez. (ECF No. 35 at 3.) As required by the applicable Federal Rules of

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Civil Procedure, Defendants sought and obtained leave of the Court to take

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the deposition of Mr. Perez, an incarcerated person. (ECF Nos. 28, 29.)

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Defendants are permitted to take this deposition under the rules. If Plaintiff

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would like to identify or contact his own witnesses he may do so to the extent

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permitted and in the manner allowed by the applicable California

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Regulations and Federal Rules of Civil Procedure. See, e.g., FED. R. CIV. P

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30(a)(2)(B); 15 Cal. Code Regs., tit. 15 § 3139(b).

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Plaintiff’s Motion for Appointment of Counsel is DENIED.

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IT IS SO ORDERED.

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Dated: April 12, 2019

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