Bun v. Felker et al

Filing 122

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/12/13 ordering the clerk of the court is directed to vacate the order of dismissal and judgement 115 , 116 and reopen this case. Plaintiff's request for appointment of counsel 117 is denied. Defendants shall file a pretrial statement within 30 days of the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHANTHON BUN,

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No. 2:09-cv-631-EFB P

Plaintiff,

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v.

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FELKER, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On December 3, 2013, the court dismissed this case for failure to prosecute after

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plaintiff failed to submit a pretrial statement in accordance with the court’s orders. ECF No. 115.

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Thereafter, plaintiff’s timely version of a pretrial statement, consisting of motions in limine,

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exhibits, a notice regarding witnesses, and a request for appointment of counsel, was docketed by

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the Clerk of the Court. ECF Nos. 117-121. Accordingly, the order of dismissal will be vacated.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the
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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case.

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Accordingly, it is hereby ORDERED that:

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1. The Clerk of the Court is directed to vacate the order of dismissal and judgment (ECF

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Nos. 115, 116) and to reopen this case;

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2. Plaintiff’s request for appointment of counsel (ECF No. 117) is denied; and

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3. Defendants shall file a pretrial statement within 30 days of the date of this order.

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Dated: December 12, 2013.

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