Lescallett v. Diaz et al

Filing 42

ORDER DENYING Plaintiff's 41 Motion to Appoint Counsel Without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 9/6/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARRELL JUNIOR LESCALLETT,

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Plaintiff,

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v.

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R. DIAZ, et al.,

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Defendants.

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1:13-cv-01342-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE
(ECF No. 41)

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Plaintiff Darrell Junior Lescallett (“Plaintiff”) is a state prisoner proceeding in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds

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on Plaintiff’s claims for retaliation in violation of the First Amendment against Defendants

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Gipson, Broomfield and Doe Defendants.

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Currently before the Court is Plaintiff’s motion for the appointment of counsel. (ECF No.

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41.) The upper left-hand corner of the motion indicates it is filed by “Brandon Favor-El, Legal

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Assistant/Paralegal.” (Id. at 1.) The motion also indicates that Plaintiff has signed it with the

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understanding that it is true and correct. However, comparing the signature on this motion, (Id. at

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3), to prior filings in this case—including the complaint, (ECF No. 1, p. 3), and first amended

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complaint, (ECF No. 9, p. 15)—it is clear that the motion for the appointment of counsel was not

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signed by Plaintiff. It appears to possibly have been signed by the legal assistant/paralegal.

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Federal Rule of Civil Procedure 11(a) requires that “[e]very pleading, written motion, and
other paper must be signed by . . . a party personally if the party is unrepresented” and that the
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court must strike an unsigned paper unless the omission is promptly corrected after being called

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to the party’s attention. Fed. R. Civ. P. 11(a). The Local Rules also require that all pleadings and

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non-evidentiary documents shall be signed by a pro se party himself or herself, Local Rule

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131(b), and that a party appearing pro se put his or her name, address, and telephone number in

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the upper left-hand corner of the first page of each document presented for filing, Local Rule

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131(a).

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The Court finds that Plaintiff’s motion was not signed by him, and therefore the

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substance of his motion shall not being addressed. Plaintiff may re-file a properly signed motion

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with his information listed in the upper left-hand corner, if he wishes for his motion to be

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considered. The current motion shall be denied without prejudice.
Plaintiff is generally not prohibited from using the assistance of a legal assistant or

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paralegal in preparing filings. However, only he, or his attorney of record if he becomes

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represented by counsel, may sign pleadings, motions and other filings, as indicated by the

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Federal Rules of Civil Procedure and Local Rules.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of
counsel, (ECF No. 41), is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 6, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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