(PC) Ortega v. United States of America ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ALBERT ORTEGA, Case No. 1:19-cv-00999-LJO-BAM (PC) 8 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 9 v. (ECF No. 9) 10 UNITED STATES OF AMERICA, et al. 11 Defendants. 12 13 Plaintiff Albert Ortega is a federal prisoner proceeding pro se and in forma pauperis in 14 this civil rights action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401 et 15 seq. 16 Currently before the Court is Plaintiff’s motion to appoint counsel, filed on August 22, 17 2019. (ECF No. 9.) In his motion, Plaintiff asserts that he needs the voluntary assistance of 18 counsel because his ability to litigate this action has been hindered by the injury to his right 19 shoulder, which causes his right fingers to go numb in the process of writing court documents, he 20 is not an experienced jailhouse lawyer, this case involves technical medical issues that Plaintiff is 21 unable to deal with adequately, this case will require the use of expert witnesses, Plaintiff is in 22 solitary confinement and has no ability to investigate the facts and has limited access to legal 23 materials, Plaintiff does not have access to California state law, which is the controlling authority 24 in this FTCA action, and he is not financially stable and cannot afford to hire counsel. 25 The Court notes that Plaintiff does not have a constitutional right to appointed counsel in 26 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require 27 any attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States 28 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in 1 certain exceptional circumstances, the Court may request the voluntary assistance of counsel 2 pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and 3 compensating counsel, the Court will seek volunteer counsel only in the most serious and 4 exceptional cases. In determining whether “exceptional circumstances exist, the district court 5 must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to 6 articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal 7 quotation marks and citations omitted). “Neither of these considerations is dispositive and 8 instead must be viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The 9 burden of demonstrating exceptional circumstances is on Plaintiff. Id. 10 The Court has considered Plaintiff’s request, but does not find the required exceptional 11 circumstances. Initially, circumstances common to most prisoners, such as lack of legal 12 education, limited law library access, and lack of funds to hire counsel, do not alone establish the 13 exceptional circumstances that would warrant appointment of counsel. Further, at this stage in 14 the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the 15 merits. Plaintiff’s complaint has not been screened. Therefore, this case does not yet proceed on 16 any cognizable claims. Finally, based on a review of the record in this case, the legal issues 17 involved in this case do not appear to be particularly complex and the Court finds that Plaintiff 18 can adequately articulate his claims. As demonstrated in the instant motion, Plaintiff is able to 19 prepare and file documents clearly setting forth his contentions, without assistance from counsel. 20 For the foregoing reasons, Plaintiff’s motion to appoint counsel, (ECF No. 9), is DENIED, 21 without prejudice. IT IS SO ORDERED. 22 23 Dated: August 27, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28