Geren v. Cate, et al

Filing 34

ORDER signed by Magistrate Judge Craig M. Kellison on 10/17/11 denying 30 Motion to Appoint Counsel. Plaintiff's motion to file a second amended complaint 32 is granted. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDY JAMES GEREN,

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No. CIV S-10-0206-GEB CMK-P

Plaintiff,
vs.

ORDER

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MATTHEW CATE, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for appointment of counsel

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(Doc. 30), and motion to file a second amended complaint (Doc. 32).

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The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). In the present case, the court does not at this time find the required exceptional

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circumstances.
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Federal Rule of Civil Procedure 15 provides that the court should freely give leave

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to file an amended complaint when justice so requires. Fed. R. Civ. Proc. 15(a)(2). Here,

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plaintiff’s second amended complaint is essentially the same as his first amended complaint,

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which was filed pursuant to this court’s order. It appears plaintiff has simply fixed some

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typographical errors which were present in the first amended complaint. As such, the court will

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accept the second amended complaint. By separate order, the court will address the claims raised

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therein, and will determine whether the second amended complaint is sufficient to state a claim

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as required by 28 U.S.C. § 1915A(a).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s request for the appointment of counsel (Doc. 30) is denied; and

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Plaintiff’s motion to file a second amended complaint (Doc. 32) is granted.

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DATED: October 17, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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