United States District Court, E.D. California
ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL
SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED
COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ON
COGNIZABLE CLAIM (ECF No. 1) THIRTY-DAY DEADLINE
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
Larry William Cortinas (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action under 42 U.S.C. § 1983. The matter
was transferred to this Court on September 13, 2019. (ECF No.
5.) Plaintiff filed his complaint, which includes a request
for appointment of counsel, on September 7, 2019. (ECF No.
Request for Appointment of Counsel
indicated, Plaintiff requests the appointment of counsel in
this action. Although not entirely clear, it appears that
Plaintiff seeks such an appointment because he is physically
and mentally disabled. (ECF No. 1 at 6.)
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), rev'd in part on other grounds,
154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot
require an attorney to represent plaintiff pursuant to 28
U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for
the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However,
in certain exceptional circumstances the court may request
the voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, a district court must
evaluate both the 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.” Id. (internal quotation marks and
Court has considered Plaintiff's request, but does not
find the required exceptional circumstances. Even if it is
assumed that Plaintiff is not well versed in the law and that
he has made serious allegations which, if proved, would
entitle him to relief, his case is not exceptional. This
Court is faced with similar cases filed by prisoners who are
proceeding pro se almost daily. Although Plaintiff
claims that he is physically and mentally disabled, he does
not provide any information to support this claim or to
demonstrate that his physical or mental issues prevent him
from effectively litigating his case. Furthermore, nothing in
Plaintiff's complaint suggests that he is incapable of
articulating a factual basis for his Eighth Amendment
excessive force claim. As discussed below, based on the
Court's initial screening, Plaintiff has pled sufficient
factual content to state a plausible Eighth Amendment claim
for relief. For these reasons, Plaintiff's motion to
appoint counsel is HEREBY DENIED without prejudice.
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §§
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
While a plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678 (quotation marks omitted); Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer
possibility that a defendant acted unlawfully is not
sufficient, and mere consistency with liability falls short
of satisfying the plausibility standard. Iqbal, 556
U.S. at 678 (quotation marks omitted); Moss, 572
F.3d at 969.
is currently housed at California State Prison, Sacramento.
The events in the complaint are alleged to have occurred
while Plaintiff was housed at California State Prison,
Corcoran in Corcoran, California. Plaintiff asserts claims
for violation of the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act and the Eighth
Amendment to the United States Constitution. Plaintiff names
Defendant McDonald as the sole defendant and alleges as
MARCH 17, 2018 I was inside California state prison Corcoran
hospital. I suffered a black out from my heart condiction.
Correctional Officer Mc Donald was allow with me in the
hospital room. He was asking me Questions which I would not
answer. So he [Mc Donald] grabed my handcuffed to the
hospital bed right hand. Mc Donald SQUEEZED my hand until the
bones broke. I had surgery upon the hand to set the bones
with pins. Mc Donald used this force to punish me for not
responding to his questions. NO INCIDENT REPORT was filed No
rule violation occured., A use of force video was made. The
medical records have my statement that Mc Donald ...