(PC) Rodriguez v. United States of America ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL RODRIGUEZ, ) Case No. 1:19-cv-00001-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL ) 14 UNITED STATES OF AMERICA, (ECF No. 47) ) 15 Defendant. ) ) 16 ) 17 Plaintiff Angel Rodriguez is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674. 19 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed March 20 26, 2021. 21 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 22 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 23 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 24 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the 25 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 26 /// 27 /// 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court finds that neither the interests of justice nor exceptional 7 circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th 8 Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on claims 9 of assault and battery under the FTCA, and the legal issues present in this action are not complex. In 10 addition, Plaintiff has thoroughly litigated this case to date. Circumstances common to most prisoners, 11 such as lack of legal education and limited law library access, do not establish exceptional 12 circumstances that would warrant a request for voluntary assistance of counsel. In addition, the 13 challenges presented by the COVID-19 pandemic do not establish exceptional circumstances. See, 14 e.g., Pitts v. Washington, No. 18-CV-526-RSL-MLP, 2020 WL 2850564, at *1 (W.D. Wash. June 15 2020) (denying motion for appointment of counsel because, “[a]lthough Plaintiff contends he is unable 16 to access the law library because of social distancing, this bare assertion does not justify the 17 appointment of counsel at this time, nor does the COVID-19 pandemic.”); Faultry v. Saechao, No. 18- 18 CV-1850-KJM-AC-P, 2020 WL 2561596, at *2 (E.D. Cal. May 2020) (denying motion for 19 appointment of counsel and explaining that “[c]ircumstances common to most prisoners, such as lack 20 of legal education and limited law library access, do not establish exceptional circumstances 21 supporting appointment of counsel. [...] The impacts of the COVID-19 health crisis on prison 22 operations are also common to all prisoners.”). 23 While a pro se litigant may be better served with the assistance of counsel, so long as a pro se 24 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 25 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 26 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 27 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 28 “may well have fared better-particularly in the realm of discovery and the securing of expert 1 || testimony.”) Accordingly, Plaintiff second motion for appointment of counsel is DENIED, without 2 || prejudice. 3 4 IT IS SO ORDERED. Al oe 5 || Dated: _March 29, 2021 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28