(PC) Cortinas v. Gill, Jr. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAMS CORTINAS, Case No. 1:18-cv-00515-NONE-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 44) 14 RAVIJOT GILL, JR., et al., 15 Defendants. 16 17 18 This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 34).1 19 Pending before the Court, inter alia, is Plaintiff’s motion to appoint counsel filed May 21, 2021. 20 (Doc. No. 44). Plaintiff Larry Williams Cortinas is currently incarcerated within a California state 21 prison and is proceeding pro se on his civil rights complaint as screened. (Doc. No. 17). Plaintiff 22 is proceeding in forma pauperis. (Doc. No. 12). 23 The United States Constitution does not require appointment of counsel in civil cases. See 24 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 25 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this Court has 26 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 27 1 Due to an internal anomaly in CMCEF, the pending motions were not reassigned to the undersigned until 28 08/23/2021. 1 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 2 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 3 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 4 citations omitted). However, motions to appoint counsel in civil cases are granted only in 5 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 6 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 7 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 8 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 9 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 10 banc, 154 F.2d 952 (9th Cir. 1998). 11 Plaintiff states that he requires appointment of counsel because the claims raised in the 12 complaint are medical in nature and require the testimony of an expert. (Doc. No. 44 at 1). 13 Plaintiff also claims that he has been suffering retaliation by prison staff for filing his federal 14 complaint. (Id.). Plaintiff also makes unrelated claims regarding his medication, his hunger 15 strike, and a request for telemedicine care. 16 Prison litigation often involves medical claims, and an extraordinary situation cannot be 17 demonstrated through the “vicissitudes of prison life.” Chaffer v. Prosper, 592 F.3d 1046, 1049 18 (9th Cir. 2010). Further, although plaintiff is proceeding pro se and is incarcerated, he faces the 19 same obstacles all pro se prisoners face. Challenges in litigating a case, such as the need for an 20 expert witness, “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis 21 for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 22 2020). Finally, the Court does not find the issues are “so complex that due process violations will 23 occur absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). 24 Plaintiff has capably filed motions and his complaint has plausibly stated a claim to 25 survive screening and be served on Defendants. Plaintiff has not shown exceptional 26 circumstances that warrant appointment of counsel at this stage of the proceedings. Should this 27 case progress and Plaintiff’s circumstances change so that he is able to demonstrate exceptional 28 circumstances, he may renew his motion for appointment of counsel at that time. 1 Accordingly, it is ORDERED: 2 Plaintiff's motion to appoint counsel (Doc. No. 44) is DENIED without prejudice. 3 * | Dated: __August 23, 2021 Wile. Th. foareh fackt 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28