Xiong v. Kirland et al

Filing 62

ORDER signed by Magistrate Judge Gregory G. Hollows on 09/25/12 denying 60 Motion to Appoint Counsel and granting 59 Motion for subpoena forms. The clerk shall forward to plaintiff 3 blank subpoena forms. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

XAI XIONG,
Plaintiff,

11
12
13
14
15
16

No. 2:09-cv-3345 MCE GGH P

vs.
H. KIRKLAND, et al.,
Defendants.

ORDER
/

Plaintiff has requested the appointment of counsel. The United States Supreme

17

Court has ruled that district courts lack authority to require counsel to represent indigent

18

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

19

certain exceptional circumstances, the court may request the voluntary assistance of counsel

20

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

21

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court

22

does not find the required exceptional circumstances. The remaining claims in this case are not

23

complex. Plaintiff’s request for the appointment of counsel will therefore be denied.

24

Plaintiff has also requested “subpoena forms.” See Doc. No. 59. Plaintiff is

25

reminded to adhere to the schedule outlined in the court’s “Further Scheduling Order” for the

26

submission of the subpoena forms. See Doc. No. 61. Plaintiff must also submit witness fees and
1

1

travel expenses for each unincarcerated witness to the U.S. Marshal with the completed subpoena

2

forms.

3

Accordingly, IT IS HEREBY ORDERED that

4

1. Plaintiff’s August 9, 2012, request for the appointment of counsel (Docket No.

5

60) is denied; and
2. Plaintiff’s request for subpoena forms (Docket No. 59) is granted. The Clerk

6
7

shall forward to plaintiff three blank subpoena forms.

8

DATED: September 25, 2012

9
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

10
11
GGH:rb

12

xion3345.31

13
14
15
16
17
18
19
20
21
22
23
24
25
26
2