Moody v. Graves et al

Filing 27

ORDER Denying 26 Plaintiff's Motions for Appointment of Counsel and Trial on Prior Complaint, signed by Magistrate Judge Sandra M. Snyder on 4/12/2010. (Verduzco, M)

1 2 3 4 5 6 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 Plaintiff, 12 v. 13 14 15 Defendants. 16 17 18 Plaintiff Ronnie Lee Moody is a state prisoner proceeding pro se and in forma pauperis in / (Doc. 26) OFFICER GLEN GRAVES, et al., ORDER DENYING PLAINTIFF'S MOTIONS FOR APPOINTMENT OF COUNSEL AND TRIAL ON PRIOR COMPLAINT RONNIE LEE MOODY, CASE NO. 1:09-cv-01502-AWI-SMS

UNITED STATES DISTRICT COURT

19 this civil rights action pursuant to 42 U.S.C. § 1983. On April 2, 2010, this Court denied 20 Plaintiff's Second Amended Complaint (Doc. 22) and two motions: Motion for Court Order (Doc. 21 23) and Motion for Extension of Time (Doc. 24) (Doc. 25). Plaintiff has now moved for 22 appointment of counsel and demanded a jury trial, apparently on his original complaint (Doc. 1). 23 This matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b) and Local 24 Rules 72-302 and 72-304. 25 I. 26 Appointment of Counsel Plaintiff first requests appointment of counsel. The United States Supreme Court has

27 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 28 cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 1

1 298 (1989). In certain exceptional circumstances, the Court may request the voluntary assistance 2 of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 3 1997), withdrawn in part, on other grounds, 154 F.3d 952 (1998), cert. denied, 527 U.S. 1035 4 (1999). Without a reasonable method of securing and compensating counsel, this Court will seek 5 volunteer counsel only in the most serious and exceptional cases. 6 In the present case, the Court does not find the required exceptional circumstances. See

7 Rand, 113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that 8 he has made serious allegations which, if proved, would entitle him to relief, his case is not 9 exceptional. This court is faced with similar cases almost daily. Therefore, Plaintiff's request for 10 the appointment of counsel will be denied. 11 II. 12 Demand for Trial Plaintiff demands "a jury trial on my case of claim that was filed last year and transferred

13 from San Francisco Northern District Court to Fresno Eastern District Court." Presumably, 14 Plaintiff refers to his original complaint (Doc. 1). Plaintiff's original complaint (Doc. 1), first 15 amended complaint (Doc. 19), and second amended complaint (Doc. 22) have been dismissed for 16 failure to state a cognizable claim (Docs. 13, 21, and 25). This Court cannot order that trial 17 proceed until Plaintiff has filed a complaint setting forth a cognizable claim, all defendant(s) have 18 been served, and necessary pretrial proceedings have been completed.1 19 III. 20 Conclusion and Order For the reasons set forth above, this Court DENIES Plaintiff's motion for appointment of

21 counsel and an order for a jury trial. 22 23 IT IS SO ORDERED. 24 Dated: icido3 25 26 27
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April 12, 2010

/s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

This Court's prior order (Doc. 25) permits Plaintiff to amend his complaint within thirty days or by May

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5 , 2010.

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