The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 MARIO R. RODAS PORTILLO, Case No. 1:23-cv-00920-BAM
12 Plaintiff, ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
13 v. COUNSEL WITHOUT PREJUDICE AND
DENYING REQUEST FOR
14 CITY OF SHAFTER, et al., INVESTIGATOR
15 Defendants. (Doc. 11)
16
17 Plaintiff Mario R. Rodas Portillo is a county jail inmate proceeding pro se and in forma
18 pauperis in this civil rights action under 42 U.S.C. § 1983. On August 25, 2023, Plaintiff filed
19 the instant motion requesting that the Court appoint counsel to represent him in this action. (Doc.
20 11.) In support of the motion, Plaintiff explains that he is unable to afford counsel and his
21 imprisonment limits his litigation capabilities. Plaintiff contends that he is unable to obtain
22 copies of summonses and the complaint for service, the facility lacks a notary for proof that
23 documents were mailed and received, and the facility charges for inmates to make copies.
24 Additionally, Plaintiff would like an investigator for the purpose of interviewing witnesses.1 (Id.
25 at p. 1-2.)
26
27 1 Plaintiff also mentions that the Shafter Police Department is not looking into his “identity theft of
personal and business due to this lawsuit.” (Doc. 11 at p. 2.) Plaintiff’s assertions regarding identity theft
28 appear to be unrelated to the nature of this action.
1 I. Motion to Appoint Counsel
2 Plaintiff is advised that does not have a constitutional right to appointed counsel in this
3 action. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds,
4 154 F.3d 952, 954 n.1 (9th Cir. 1998). The court cannot require an attorney to represent Plaintiff
5 pursuant to 28 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S.
6 296, 298 (1989). However, in certain exceptional circumstances the Court may request the
7 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a
8 reasonable method of securing and compensating counsel, the Court will seek volunteer counsel
9 only in the most serious and exceptional cases. In determining whether “exceptional
10 circumstances exist, a district court must evaluate both the likelihood of success on the merits
11 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
12 legal issues involved.” Id. (internal quotation marks and citations omitted).
13 In the present case, the Court does not find the required exceptional circumstances. Even
14 if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations
15 which, if proved, would entitle him to relief, his case is not exceptional. His indigent status and
16 incarceration are not sufficient to make this case exceptional. This Court is faced with similar
17 cases almost daily from indigent, incarcerated plaintiffs proceeding pro se. These litigants also
18 must conduct legal research, pay for photocopies, and litigate their cases without the assistance of
19 counsel. A notary is not required for proofs of service.
20 Furthermore, at this early stage in the proceedings, the Court cannot make a determination
21 that Plaintiff is likely to succeed on the merits. The first amended complaint has not been
22 screened, and no defendants have appeared. There also is no indication from the record that
23 Plaintiff is unable to articulate his claims pro se. Plaintiff’s request for appointment of counsel
24 will therefore be denied without prejudice.
25 To the extent Plaintiff complains about his inability to obtain copies of summons and
26 complaint for service, Plaintiff is reminded that the Court is required to screen complaints brought
27 by prisoners seeking relief against a governmental entity and/or against an officer or employee of
28 a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s complaint, or any portion thereof, is
1 subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may
2 be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28
3 U.S.C. § 1915A(b). Plaintiff’s first amended complaint has not been screened. As a result, no
4 summons will issue at this time. The Court will direct the United States Marshal to serve
5 Plaintiff’s first amended complaint only after the Court has screened the complaint and
6 determined that it contains cognizable claims for relief against the named defendant(s). The
7 Court will screen Plaintiff’s first amended complaint in due course.
8 II. Motion for Investigator
9 As to the apparent request for appointment of an investigator, Plaintiff has been granted
10 leave to proceed in forma pauperis with this action pursuant to 28 U.S.C. § 1915. (Doc. 7.)
11 However, the in forma pauperis statute does not authorize the expenditure of public funds for
12 investigators. See 28 U.S.C. § 1915; see also Snow v. Mar, 785 F. App’x 465, 466 (9th Cir. 2019)
13 (“[T]here is no statutory authorization for a court-appointed investigator for civil litigants
14 proceeding in forma pauperis.”); Davood v. Jimmanz, No. 1:21-cv-01394-SAB (PC), 2021 WL
15 6051735, at *1 (E.D. Cal. Dec. 21, 2021) (denying request to appoint investigator for plaintiff
16 proceeding in forma pauperis); Brown v. Johnson & Johnson, Inc., No. 1:17-cv-01285-AWI-
17 EPG, 2018 WL 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (“Section 1915 does not authorize the
18 Court to expend public funds to appoint an investigator or researcher. Thus, the Court is without
19 authority to appoint an investigator or researcher to assist Plaintiff.”). Accordingly, Plaintiff's
20 request to appoint an investigator also will be denied.
21 III. Conclusion and Order
22 Based on the above, IT IS HEREBY ORDERED as follows:
23 1. Plaintiff’s motion to appoint counsel (Doc. 11) is DENIED without prejudice; and
24 2. Plaintiff’s request for appointment of an investigator is DENIED.
25
IT IS SO ORDERED.
26
27 Dated: August 30, 2023 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
28