Inginio Hernandez v. Bob Faulkner, et al.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 INGINIO HERNANDEZ, Case No. 3:24-CV-00278-ART-CLB

5 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 6 v. [ECF No. 40] 7 BOB FAULKNER, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff Inginio Hernandez’s (“Hernandez”) motion for 11 appointment of counsel.1 (ECF No. 40). For the reasons discussed below, the motion for 12 appointment of counsel, (ECF No. 40), is denied. 13 There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand 14 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 15 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 U.S.C. §1915(e)(1) gives 16 the court discretion to “request an attorney to represent any person unable to afford 17 counsel.” 28 U.S.C. § 1915(e)(1); see, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 18 (9th Cir. 1998) (en banc.) While the decision to request counsel lies within the discretion 19 of the district court, the court may exercise this discretion to request counsel only under 20 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 21 A finding of “exceptional circumstances” requires the court to evaluate (1) the 22 plaintiff’s likelihood of success on the merits and (2) the Plaintiff’s ability to articulate his 23 claims pro se considering the complexity of the legal issues involved. 24 Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation marks omitted). Neither factor 25 is dispositive, and both factors must be considered before a court decides. Id. The 26 difficulties every litigant faces when proceeding pro se does not qualify as an exceptional

27 1 This motion was erroneously docketed as an application to proceed in forma pauperis, although the document is clearly labeled as a “Motion for Appointment 1 circumstance. Wood v. Housewright, 900 F. 2d 1332, 1335-36 (9th Cir. 1990). While 2 almost any pro se litigant would benefit from the assistance of competent counsel, such 3 a benefit does not rise to the level of “exceptional circumstances.” Rand, 113 F.3d at 4 1525. Rather, the plaintiff must demonstrate that he is unable to articulate his claims due 5 to their complexity. Id. 6 The Court has previously denied another motion for counsel filed by Hernandez 7 for failure to establish that exceptional circumstances exist to warrant the appointment 8 of counsel, (ECF No. 35), and the instant motion contains even less supporting 9 information. (Compare ECF No. 33 with ECF No. 40.) The motion for appointment of 10 counsel is a form order stating Hernandez is unable to afford counsel, the substantive 11 issues and procedural matters are too complex for Hernandez’s comprehension and 12 abilities. (ECF No. 40.) Hernandez does not himself include any argument in support of 13 his motion. (See id. at 2 (“Argument for Appointment” section of the motion includes only 14 the legal standard for appointment of counsel).) Hernandez again attaches documents 15 from 2013 which indicate he may not speak or be literate in English. (Id. at 3-5.) 16 As with the previous motion for counsel, the Court again finds that exceptional 17 circumstances do not exist in this instance. Hernandez has not provided any additional 18 information or argument to support his request for counsel. Based on the Court’s review 19 of his motion, the circumstances described by Hernandez’s motion are not exceptional 20 as compared to many other prisoner civil rights cases. Virtually all pro se inmate litigants 21 cannot afford counsel, face some difficulties litigating their cases due to their 22 incarceration and lack of education, and the like. Moreover, other courts agree that a 23 limited ability to speak and read English is not a basis, on its own, to appoint counsel. 24 See e.g., Nguyen v. Bartos, No. 2:10-CV-1461-WBS-KJN, 2012 WL 3589797, at *1-2 25 (E.D. Cal. Aug. 20, 2012) (denying motion for counsel notwithstanding plaintiff’s 26 allegations of limited understanding of English, inability to read and write English and 27 lack of understanding of the law, because “the court does not have the resources to files a civil rights action.”); Montano v. Solomon, No. 2:07-CV-0800-KJN, 2010 WL 2| 2403389, at *2 (E.D. Cal. June 11, 2010) (denying request for counsel based upon 3 | plaintiff's indigence and inability to read and write English requiring him to rely on other 4) inmates to prepare his briefs, because “neither indigence nor lack of facility in English qualifies as an exceptional circumstance in a prisoner civil rights case.”). 6 For these reasons, Hernandez has not demonstrated exceptional circumstances 7 | exist in this case and the Court DENIES his motion for.counsel, (ECF No. 40). 8| DATED: January 30, 2026 ‘

9 UNITED STATES\MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28