Valdez v. Zhang
- Proceeding
- district
- Area
- civil
- Panel
- William v. Gallo (author)
Analysis
The court considered a pro se prisoner's motion for reconsideration of a prior order denying his requests for appointed counsel and an investigator. The court denied the motion, finding that the plaintiff's limited education and English proficiency did not constitute exceptional circumstances warranting appointment, and that the statute does not authorize funding for an investigator.
| What the court decided | The model |
|---|---|
Motion for Reconsideration Denied“Plaintiff’s motion is DENIED.” | agree with court The court correctly applied the standard for appointment of counsel under 28 U.S.C. § 1915(e)(1), which requires a showing of exceptional circumstances. The court cited binding Ninth Circuit precedent (Rand v. Rowland, Agyeman v. Corrs. Corp.) establishing that there is no constitutional right to counsel in § 1983 actions and that limited English proficiency or education, without more, does not meet the 'exceptional circumstances' threshold. The court's factual finding that the plaintiff's claims were sufficiently clear and the issues not particularly complex supports the denial. The denial of the investigator request is also legally sound, as 28 U.S.C. § 1915 does not authorize the expenditure of public funds for investigators in civil cases (Tedder v. Odel). |
The order itself: sound — The order is legally sound. It correctly identifies the applicable legal standard for appointment of counsel in civil § 1983 cases (discretionary, requiring exceptional circumstances) and for appointment of investigators (not authorized by statute). It applies binding Ninth Circuit precedent (Rand, Agyeman, Mallard, Tedder) to the specific facts presented (limited education/English, clear claims, non-complex issues). The reliance on district court cases for the proposition that limited English is not an exceptional circumstance is appropriate as persuasive authority, especially when consistent with the broader Ninth Circuit framework. The reasoning directly addresses the plaintiff's arguments and applies the correct law.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO VALDEZ, Case No.: 20-CV-736-JLS(WVG)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION 14 DR. ZHANG, 15 Defendant. [Doc. No. 45.] 16 17 Plaintiff, a state prisoner proceeding pro se, seeks reconsideration of the Order 18 denying his request for appointment of an attorney or, in the alternative, an investigator. 19 Plaintiff’s motion is DENIED. 20 I. APPLICABLE LAW 21 “There is no constitutional right to appointed counsel in a § 1983 action.” Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other 23 grounds). Thus, federal courts do not have the authority “to make coercive appointments 24 of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v. 25 $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 26 Districts courts do have discretion, however, pursuant to 28 U.S.C. section 27 1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of 28 exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th 1 Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking assistance 2 requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and 3 an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 4 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 5 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 6 Cir. 1991). 7 The Court agrees that any pro se litigant “would be better served with the assistance 8 of counsel.” Rand, 113 F.3d at 1525. However, so long as a pro se litigant, like Plaintiff in 9 this case, is able to “articulate his claims against the relative complexity of the matter,” the 10 exceptional circumstances which might require the appointment of counsel do not exist. 11 Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when 12 district court denied appointment of counsel despite fact that pro se prisoner “may well 13 have fared better-particularly in the realms of discovery and the securing of expert 14 testimony”). 15 II. DISCUSSION 16 Plaintiff’s reconsideration motion is based on the same reasoning as his original 17 motion: he has limited education and limited English language abilities. However, as the 18 Court explained prevoiusly, limited English proficiency is “not an exceptional 19 circumstance.” Jongpil Park v. Kitt, 2021 U.S. Dist. LEXIS 54998, at *5 (E.D. Cal. Mar. 20 22, 2021); Reyes v. Ortega, 2016 U.S. Dist. LEXIS 165542, at *3-4 (S.D. Cal. Nov. 30, 21 2016); Garces v. Degadeo, 2007 U.S. Dist. LEXIS 40582, 2007 WL 1521078, at *1 (E.D. 22 Cal. May 22, 2007). 23 The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 24 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 25 However, counsel must be appointed if the complexities of the case are such that denial of 26 counsel would amount to a denial of due process, and where the petitioner is a person of 27 such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 28 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The complaint in 1 || this action is sufficiently clear in presenting the issues that Plaintiff wishes to bring. Also, 2 || the issues in this case are not particularly complex. It does not appear that appointment of 3 counsel is warranted in this instance. 4 Additionally, with respect to Plaintiff's request for appointment of an investigator, 5 || expenditure of public funds on behalf of an indigent litigant is proper only when authorized 6 || by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir.1989). Section 1915 does not authorize 7 || or require federal courts to finance or subsidize a civil action or appeal by paying expert 8 || fees or other costs. Hadsell v. Internal Revenue Service, 107 F.3d 750, 752 (9th Cir.1997); 9 || Dixon v. YIst, 990 F.2d 478, 480 (9th Cir.1993). The in forma pauperis statute does not 10 || authorize the expenditure of public funds for a court-appointed investigator. See 28 U.S.C. 11 1915. Plaintiff cites to no legal authority requiring the Court to appoint an investigator, 12 the Court is aware of none. Accordingly, the Court will also deny plaintiff’s request 13 || for an investigator. 14 Petitioner’s motion for reconsideration is DENIED without prejudice. 15 IT IS SO ORDERED. 16 || Dated: November 17, 2021 Se 17 | Ms ~ 18 Hon. William V. Gallo United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28