Christ v. McCraw

Filing 22

ORDER signed by Magistrate Judge John F. Moulds on 5/16/2011 ORDERING that the cmplt states a cognizable claim for relief against dft S. McCraw; dft McCraw shall respond to the cmplt w/in 20 days; w/in 20 days, dft shall file and serve a response to pltf's 12 motion for an order permitting him to correspond w/ non party witnesses; and pltf's 12 request for appointment of counsel is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON CHRIST,

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Plaintiff,

No. 2:11-cv-1156 JFM (PC)

vs.
S. McCRAW,
Defendant.
/

ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983. On or about March 17, 2011, defendant removed this action from the Santa Clara

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County Superior Court to the United States District Court for the Northern District of California.

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On April 28, 2011, the action was transferred to this court. It has been referred to the

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undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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On March 17, 2011, defendant filed a request to screen this action pursuant to 42

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U.S.C. § 1983 and a waiver of reply pursuant to 42 U.S.C. § 1997e(g). The court has screened

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the complaint pursuant to 28 U.S.C. § 1915A and finds that it states a cognizable claim for relief

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pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are

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proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

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Accordingly, defendant will be directed to respond to the complaint.
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On April 18, 2011, plaintiff filed a motion for an order permitting him to

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correspond with non party witnesses. Good cause appearing, defendant will be directed to

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respond to the motion.

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

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

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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

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

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

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

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appointment of counsel will therefore be denied.

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

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1. The complaint states a cognizable claim for relief against defendant S.

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McCraw.

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2. Defendant McCraw shall respond to the complaint within twenty days from the
date of this order.

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3. Within twenty days from the date of this order defendant shall file and serve a

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response to plaintiff’s April 18, 2011 motion for an order permitting him to correspond with non

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party witnesses.

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4. Plaintiff’s April 18, 2011 request for appointment of counsel is denied.
DATED: May 16, 2011.

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12;chri1156.1

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