United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a federal prisoner proceeding pro se, is proceeding with an
action under the Federal Tort Claims Act. Plaintiff claims
that she has suffered personal injury as a result of
negligence, wrongful acts, and omissions of employees and
appointed officials of the Government while acting in the
course and scope of their duties. (ECF No. 24.) Presently
before the court is plaintiff's motion to appoint
counsel. (ECF No. 28.)
Motion to Appoint Counsel
a person has no right to counsel in a civil case.
Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25
(1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009). However, in certain exceptional circumstances,
the district court may request the voluntary assistance of
counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood
v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
test for exceptional circumstances requires the court to
evaluate the plaintiff's likelihood of success on the
merits and the ability of the plaintiff to articulate his
claims pro se in light of the complexity of the legal issues
involved. See Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d
952, 954 (9th Cir. 1983). Circumstances common to most
prisoners, such as lack of legal education and limited law
library access, do not establish exceptional circumstances
that would warrant a request for voluntary assistance of
claims that she will be unable to litigate the instant case
because she is of old age, suffers from various medical
conditions, and has “eyesight problems that require a
magnifying glass to see or read; that limits her access to
legal material.” (ECF No. 28 at 4-5.) Plaintiff also
claims that, she is in excruciating pain and is permanently
disabled. (ECF No. 24 at 7.) However, plaintiff has not
specified what medical conditions she has and how those
conditions and her age will impede her from articulating her
claim or litigating her case. Furthermore, plaintiff's
filings in this action indicate that she is able to access
the resources necessary to file timely pleadings.
Additionally, plaintiff may, and has, requested extensions of
time when necessary.
plaintiff's vision issue, plaintiff claims that her
eyesight problems require her to use a magnifying glass to
see or read. (Id. at 4.) In Gomez v.
Madden, No. 16-CV-2316-WQH(WVG), 2018 WL 6829821 (S.D.
Cal. Dec. 28, 2018), the Court granted an appointment of
counsel to a plaintiff with severe vision issues, reasoning
that “[i]f Plaintiff does not have the ability to
research, draft, or otherwise litigate this case due to his
vision issues, he will invariably need to request extensions
of deadlines” and for that reason the appointment of
counsel would benefit the Court. (Id. at 1-2.) In
the instant case, plaintiff is able to see and read with the
assistance of a magnifying glass. Additionally,
plaintiff's filings in this action reflect that she is
capable of reading and comprehending orders from the court.
Therefore, the undersigned does not find plaintiff's age,
medical condition, and vision issues to be exceptional
circumstances sufficient to warrant the appointment of
also claims that she will be unable to litigate the instant
case because she is not a native English speaker, the case is
legally complex, and she is at a disadvantage due to her lack
of legal training. (ECF No. 28 at 4-5.) It appears that
plaintiff has adequate understanding of English and
“the court does not have the resources to appoint
counsel for every prisoner with limited English language and
reading skills who files a civil rights action.”
Nguyen v. Bartos, No. 2:10-cv-1461 WBS KJN P, 2012
WL 3589797, at *2 (E.D. Cal. Aug. 20, 2012); see Montano
v. Solomon, No. 2:07-CV-0800 KJN P, 2010 WL 2403389, at
*2 (E.D. Cal. June 11, 2010) (The Court denied the
appointment of counsel to an indigent plaintiff unable to
read and write English.); Rios v. Tilton, No.
2:07-CV-0790 WBS KJN P, 2010 WL 3784703, at *9 (E.D. Cal.
Sept. 24, 2010) (The Court held that plaintiff, a state
prisoner, claiming to be “disadvantaged in legal
training and resources, because English is his second
language” did not face any challenges “dissimilar
to those faced by most prisoners pursuing civil rights
cites to 2nd, 7th and 8th
Circuit cases in support of her claim that she is at a
disadvantage due to her lack of legal training and the legal
complexity of the case. (ECF No. 28 at 4-5.) Those cases are
not persuasive authority. Furthermore, in a relevant case,
the Eastern District stated that lacking legal training
and/or access to legal material does not constitute
exceptional circumstances. Galvan v. Fox, No.
2:15-CV-01798 KJM DB, 2017 WL 1353754, at *9 (E.D. Cal. Apr.
12, 2017). The undersigned does not find plaintiff's
English skills, lack of legal training and the case's
complexity to be exceptional circumstances for the
appointment of counsel.
further claims that “she is unable to identify, locate
and interview the people outside of prison whom the
defendants would use as witnesses, ” and that this
action will require “[m]edical experts and/or to
cross-examine the witness by the defendants or both.”
(ECF No. 28 at 3.) Plaintiff's inability to identify,
locate and interview witnesses is a circumstance common to
most prisoners and does not establish an exceptional
circumstance that would warrant a request for voluntary
assistance of counsel.
also appears to claim that she will be unable to successfully
litigate this case due to her lack of knowledge of medical
issues and terminology. (ECF No. 28 at 4.) However, there is
no need for expert testimony at this time as plaintiff has
demonstrated an ability to explain her injury without the
assistance of counsel. Therefore, the undersigned does not
find plaintiffs inability to identify, locate, and interview
defendant's witnesses, and her lack of knowledge of
medical issues and terminology to be exceptional
circumstances for the appointment of counsel.
stage of the proceedings the undersigned is unable to
ascertain plaintiffs likelihood of success on the merits. See
Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir.
2008) (At the pleading stage, the court is not in a position
to determine questions of the claim's merit which require
submission of evidence, versus only a determination as to
whether a claim has been plausibly stated). Plaintiff has not
established exceptional circumstances that would warrant
appointment of counsel. Accordingly, plaintiffs motion to
appoint counsel (ECF No. 28.) is denied without prejudice to
its renewal at a later stage of the proceedings.
IT IS HEREBY ORDERED that plaintiffs motion to appoint
counsel (ECF ...