Burton v. McDonald, et al

Filing 72

ORDER signed by Magistrate Judge John F. Moulds on 12/10/12 denying 64 Motion to Compel. The clerk of the court is directed to send plaintiff the court's form complaint for a prisoner civil rights action and accompanying instructions. Plaintiff is granted 60 days from the date of this order in which to file and serve a proposed fourth amended complaint. Plaintiff's 10/11/12 motion for appointment of counsel 70 is denied. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

HARRISON L. BURTON,

11
12
13
14
15
16

Plaintiff,

No. 2:10-cv-1980 JAM JFM (PC)

vs.
WARDEN MCDONALD, et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

17

filed pursuant to 42 U.S.C. § 1983. By order filed July 13, 2012, plaintiff’s third amended

18

complaint was dismissed and plaintiff was granted thirty days in which to file a fourth amended

19

complaint. On August 3, 2012, plaintiff filed a motion to compel return of his legal materials

20

and for a one hundred twenty day extension of time to file a fourth amended complaint. By order

21

filed August 24, 2012, defendants were directed to respond within ten days to that motion, and

22

the court vacated the deadline for filing a fourth amended complaint.

23

On August 31, 2012, defendants filed a response to plaintiff’s motion to compel.

24

Therein, defendants represent that on August 29, 2012, counsel for defendants sent plaintiff

25

copies of his third amended complaint, defendants’ motion to dismiss the third amended

26

complaint, a copy of the court’s order dismissing the third amended complaint for failure to
1

1

include a prayer for relief, and two envelopes. Defendants contend, inter alia, that plaintiff’s

2

motion is moot because they have provided him with everything he needs to file a fourth

3

amended complaint. Defendants also contend that plaintiff’s inability to access his legal material

4

is caused by his voluntary hunger strike and confinement to a hospital bed.

5

On September 10, 2012, and October 3, 2012, plaintiff filed documents styled as

6

requests for judicial notice, both of which constitute additional argument concerning plaintiff’s

7

access to his legal materials, and on September 13, 2012 plaintiff filed a reply brief in support of

8

his motion to compel access to his legal materials. On October 3, 2012, defendants filed a

9

response to plaintiff’s requests for judicial notice.

10

After review of all relevant documents, and good cause appearing, plaintiff’s

11

motion to compel further access to his legal materials will be denied. It appears from the

12

documents before the court that plaintiff has been provided with most, if not all, of his legal

13

material, and that defense counsel has provided to plaintiff copies relevant to preparation of a

14

fourth amended complaint, as well as envelopes to use for mailing the proposed fourth amended

15

complaint. The court will directed the Clerk of the Court to send plaintiff a form § 1983

16

complaint and will set a new deadline for filing the proposed fourth amended complaint.

17

On October 11, 2012, plaintiff filed a motion for appointment of counsel. The

18

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

19

represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

20

298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance

21

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

22

1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the

23

court does not find the required exceptional circumstances. Plaintiff’s motion for the

24

appointment of counsel will therefore be denied.

25

/////

26

/////
2

1

In accordance with the above, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s August 3, 2012 motion to compel return of his legal material (Doc.

3

No. 64) is denied;

4
5

2. The Clerk of the Court is directed to send plaintiff the court’s form complaint
for a prisoner civil rights action and accompanying instructions;

6
7

3. Plaintiff is granted sixty days from the date of this order in which to file and
serve a proposed fourth amended complaint; and

8
9
10

4. Plaintiff’s October 11, 2012 motion for appointment of counsel (Doc. No. 70)
is denied.
DATED: December 10, 2012.

11
12
13
14
15

12
burt1980.o2

16
17
18
19
20
21
22
23
24
25
26
3

1
2
3
4
5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE EASTERN DISTRICT OF CALIFORNIA
7
HARRISON L. BURTON,
8
Plaintiff,

No. 2:10-cv-1980 JAM JFM (PC)

9
vs.
10
WARDEN MCDONALD, et al.,
11
Defendants.

NOTICE OF AMENDMENT

12
/
13
Plaintiff hereby submits the following document in compliance with the court’s
14
order filed

:

15
______________

Fourth Amended Complaint

16
DATED:
17
18
19

Plaintiff

20
21
22
23
24
25
26
4