Unreported / Non-Citable
Background
Felix Nacedo Flores, proceeding without a lawyer, commenced this action against the United States under the Federal Tort Claims Act on July 1, 2026, in the U.S. District Court for the Eastern District of California. The court initially set an initial scheduling conference for November 17, 2026, but it generally will not hold such a conference when one or more defendants have not appeared and answered. At the time of this order, no defendant had answered, and Flores had not filed a summons returned executed or other proof of service. On October 15, 2026, the court had directed Flores to file a status report regarding service, including the 90-day service requirement imposed by Federal Rule of Civil Procedure 4(m).
On October 10, 2026, Flores filed a motion to appoint counsel. He explained that he is not fluent in English, lacks knowledge of the law and applicable proceedings, and presently resides in Mexico. The magistrate judge addressed that motion in this order, together with the unresolved service issue and the approaching scheduling conference.
The Court’s Holding
The magistrate judge denied the motion for appointment of counsel without prejudice. The court explained that there is no constitutional right to appointed counsel in this civil action and that it cannot require any attorney to represent the plaintiff under 28 U.S.C. § 1915(e)(1). Under Mallard v. United States District Court for the Southern District of Iowa and Ninth Circuit authority such as Aldabe v. Aldabe and Wilborn v. Escalderon, the court may request the voluntary assistance of counsel only in the most serious and exceptional cases, weighing both the likelihood of success on the merits and the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues.
The court found that Flores had not shown the required exceptional circumstances. Although it was sympathetic to his language and knowledge barriers and recognized the disadvantages of pro se status, it observed that he had filed a cogent complaint, moved to correct his address, and responded to court orders. The relevant test, the court emphasized, is not whether appointment of counsel would benefit the plaintiff but whether exceptional circumstances exist, and here they do not. The court also advised Flores of the court's online resource webpage for self-represented litigants.
Construing the motion as also seeking an extension of time to effectuate service, the court granted that request and ordered that Flores have through January 27, 2027, to effectuate service under Rule 4(m). It warned that failure to meet that deadline could lead the court to issue findings and recommendations recommending dismissal without prejudice for failure to timely effectuate service. Finally, the court continued the initial scheduling conference to March 4, 2027, at 10:00 a.m.
Key Takeaways
- A civil plaintiff proceeding pro se has no constitutional right to appointed counsel, and the court cannot compel an attorney to accept the representation under 28 U.S.C. § 1915(e)(1).
- Language difficulties, limited legal knowledge, residence in Mexico, and the general disadvantages of self-representation did not establish exceptional circumstances on this record.
- Flores's ability to file a cogent complaint, correct his address, and respond to court orders supported the conclusion that he had not shown an inability to litigate the action on his own behalf.
- The denial of counsel was without prejudice, while the court separately granted practical relief by extending the service deadline to January 27, 2027, rather than leaving the original schedule in place.
- If Flores does not effectuate service by January 27, 2027, the court will consider issuing findings and recommendations to dismiss the action without prejudice for untimely service.
Why It Matters
The order cleanly separates the question of appointed counsel from the practical need for more time to serve the United States. Flores received no attorney, but he did receive a defined service extension and a new scheduling-conference date, preserving the action's opportunity to proceed while making the consequences of further delay explicit. The ruling resolves the counsel motion, the service deadline, and the scheduling conference; it does not decide the merits of the FTCA claims.
The decision illustrates the demanding exceptional-circumstances standard governing requests for volunteer counsel in civil cases. General barriers associated with language, legal inexperience, foreign residence, and pro se status were insufficient where the plaintiff's own filings demonstrated an ability to articulate and advance his claims, and where the court lacked counsel available to accept such appointments.