(PC) Ruiz v. Bodukam ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-CV-0146-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 VIJAY BODUKAM, et al., 15 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 see ECF No. 17. 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 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 of counsel because: 3 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 4 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 7 In the present case, the Court does not at this time find the required exceptional 8 circumstances. Plaintiff, who is a Spanish speaker, argues that appointment of counsel is 9 warranted because he cannot speak English and counsel is needed to assist him preparing an 10 opposition to defendants’ motion to dismiss. Despite plaintiff’s difficulties with English, the 11 record reflects that, with the assistance of other inmates and prison staff, plaintiff has been able to 12 articulate his claims in English. In particular, plaintiff was able to understand the Court’s order 13 dismissing his original complaint sufficient to timely file a first amended complaint which the 14 Court is able to understand. To the extent plaintiff cites the need to file an opposition brief, the 15 Court observes that the current motion for counsel was filed after the deadline to oppose 16 defendants’ motion had passed and after the Court issued findings and recommendations. The 17 motion was also filed after expiration of time to file objections to the findings and 18 recommendations. Finally, as explained in accompanying findings and recommendations 19 addressing the merits of plaintiff’s first amended complaint, the Court finds no chance of success 20 on the merits because plaintiff has failed to state any cognizable claims. 21 Plaintiff’s motion for the appointment of counsel contains a request for 22 “reconsideration to file motion for summary judgment.” See ECF No. 17. Plaintiff does not, 23 however, identify any order as to which he seeks reconsideration. And, as indicated above, to the 24 extent plaintiff seeks leave to file an opposition to defendants’ motion to dismiss, the request is 25 untimely and moot. The Court will disregard the request for “reconsideration.” 26 / / / 27 / / / 28 / / / wOASe 2 LDV EIT PINON MUI POI TP Aye VM VI 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for the appointment of counsel, ECF No. 17, is denied. 3 2. Plaintiffs request for “reconsideration” is disregarded. 4 3. The Clerk of the Court is directed to terminate ECF No. 17 as a pending 5 | motion. 6 7 | Dated: August 17, 2020 Ssvcqo_ 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28