(PC) Banuelos v. Weiss ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAIME BANUELOS, No. 2:19-cv-2370 JAM DB P 12 Plaintiff, 13 v. ORDER 14 R. WEISS, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims defendant acted in violation of his rights under the Eighth Amendment. 19 Presently before the court is plaintiff’s request for an extension of time to file a response to 20 defendant’s April 27, 2021 motion for summary judgment and that the motion be translated into 21 Spanish. (ECF No. 38.) 22 Plaintiff requests an additional ninety days to file his response to defendant’s motion. (Id. 23 at 1.) In support of his motion he argues that he “is a layman to the law” and English is his 24 second language. Plaintiff’s motion states that he is presently receiving assistance from two 25 fellow inmates in responding to defendant’s summary judgment motion. One translates the 26 material in defendant’s motion and the other inmate helps plaintiff with the law. (Id. at 1-2.) He 27 states that the process being used is creating a delay and could cause problems if things are being 28 //// 1 lost in translation. Good cause appearing the court will grant plaintiff an extension of time to file 2 his response. However, as set forth below, the court will deny the other requests in his motion. 3 In addition to his request for additional time, plaintiff has also requested a copy of 4 defendant’s motion for summary judgment translated into Spanish. (Id. at 2.) Plaintiff is advised 5 that the court cannot provide plaintiff with translated documents. Ruiz v. Mobert, No. 1:17-cv- 6 0709 BAM (PC), 2017 WL 6886093, *1 (E.D. Cal. July 5, 2017). Plaintiff is required to continue 7 with assistance from fellow inmates at the prison to complete his court filings. Lewis v. Casey, 8 518 U.S. 343, 356 (1996). 9 In the alternative plaintiff has requested the appointment of counsel that speaks Spanish to 10 assist him in this action. (ECF No. 38 at 2.) The United States Supreme Court has ruled that 11 district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. 12 Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 13 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 14 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 15 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 16 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 17 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 18 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 19 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 20 common to most prisoners, such as lack of legal education and limited law library access, do not 21 establish exceptional circumstances that would warrant a request for voluntary assistance of 22 counsel. 23 In the present case, the court does not find the required exceptional circumstances. 24 Plaintiff’s “difficulty in understanding English does not constitute an exceptional circumstance 25 warranting appointment of counsel.” Ruiz v. Ehlers, No. 2:21-cv-0146 JAM JDP (PC), 2021 WL 26 2313385 at *1 (E.D. Cal. May 5, 2021). Accordingly, the court declines to appoint counsel at this 27 time. 28 //// ] For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's motion (ECF No. 2 | 38) is granted in part and denied in part as follows: 3 1. Good Cause appearing plaintiffs request for an extension of time to file a response to 4 defendant’s motion for summary judgment is granted. 5 2. Plaintiff shall file and serve his response on or before September 27, 2021. Any reply 6 shall be filed and served in accordance with Local Rule 230(1). 7 3. Plaintiff's request for a translated copy of defendant’s motion for summary judgment 8 is denied. 9 4. Plaintiff's request for the appointment of counsel is denied. 10 | Dated: July 6, 2021 1] 13 BORAH BARNES 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 DB/DB Prisoner Inbox/Civil Rights/R/banu2370.360pp(2) 20 21 22 23 24 25 26 27 28