Valdez v. Zhang et al

Filing 46

ORDER Denying 45 Plaintiff's Motion Reconsideration. Signed by Magistrate Judge William V. Gallo on 11/17/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICARDO VALDEZ,

Case No.: 20-CV-736-JLS(WVG)
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

DR. ZHANG,
Defendant.

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[Doc. No. 45.]

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Plaintiff, a state prisoner proceeding pro se, seeks reconsideration of the Order

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denying his request for appointment of an attorney or, in the alternative, an investigator.

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Plaintiff’s motion is DENIED.

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I.

APPLICABLE LAW

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other

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grounds). Thus, federal courts do not have the authority “to make coercive appointments

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of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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Districts courts do have discretion, however, pursuant to 28 U.S.C. section

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1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of

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exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th
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20-CV-736-JLS(WVG)

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Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking assistance

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requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and

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an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of

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the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991).

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The Court agrees that any pro se litigant “would be better served with the assistance

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of counsel.” Rand, 113 F.3d at 1525. However, so long as a pro se litigant, like Plaintiff in

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this case, is able to “articulate his claims against the relative complexity of the matter,” the

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exceptional circumstances which might require the appointment of counsel do not exist.

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Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when

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district court denied appointment of counsel despite fact that pro se prisoner “may well

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have fared better-particularly in the realms of discovery and the securing of expert

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testimony”).

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II.

DISCUSSION

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Plaintiff’s reconsideration motion is based on the same reasoning as his original

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motion: he has limited education and limited English language abilities. However, as the

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Court explained prevoiusly, limited English proficiency is “not an exceptional

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circumstance.” Jongpil Park v. Kitt, 2021 U.S. Dist. LEXIS 54998, at *5 (E.D. Cal. Mar.

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22, 2021); Reyes v. Ortega, 2016 U.S. Dist. LEXIS 165542, at *3-4 (S.D. Cal. Nov. 30,

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2016); Garces v. Degadeo, 2007 U.S. Dist. LEXIS 40582, 2007 WL 1521078, at *1 (E.D.

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Cal. May 22, 2007).

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The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801

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F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

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However, counsel must be appointed if the complexities of the case are such that denial of

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counsel would amount to a denial of due process, and where the petitioner is a person of

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such limited education as to be incapable of fairly presenting his claims. See Chaney, 801

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F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The complaint in
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20-CV-736-JLS(WVG)

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this action is sufficiently clear in presenting the issues that Plaintiff wishes to bring. Also,

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the issues in this case are not particularly complex. It does not appear that appointment of

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counsel is warranted in this instance.

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Additionally, with respect to Plaintiff’s request for appointment of an investigator,

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expenditure of public funds on behalf of an indigent litigant is proper only when authorized

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by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir.1989). Section 1915 does not authorize

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or require federal courts to finance or subsidize a civil action or appeal by paying expert

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fees or other costs. Hadsell v. Internal Revenue Service, 107 F.3d 750, 752 (9th Cir.1997);

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Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.1993). The in forma pauperis statute does not

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authorize the expenditure of public funds for a court-appointed investigator. See 28 U.S.C.

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§ 1915. Plaintiff cites to no legal authority requiring the Court to appoint an investigator,

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and the Court is aware of none. Accordingly, the Court will also deny plaintiff’s request

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for an investigator.

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Petitioner’s motion for reconsideration is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: November 17, 2021

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20-CV-736-JLS(WVG)