Mason v. Mercy Medical Center et al

Filing 31

ORDER signed by Magistrate Judge Craig M. Kellison on 1/2/13 denying 28 Motion to Appoint Counsel ; denying 30 Motion to Amend the Complaint. (Dillon, 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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JOSHUA LEWIS MASON,

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Plaintiff,

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No. 2:11-CV-1309-CMK-P

vs.

ORDER

LEVI SOLADA, et al.,

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Defendants.

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

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for appointment of

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counsel (Doc. 28); and (2) plaintiff’s motion for leave to amend (Doc. 30).

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Turning first to plaintiff’s motion for leave to amend, plaintiff’s motion is not

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accompanied by a proposed amended complaint. As a prisoner proceeding in forma pauperis,

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plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma pauperis

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statute. See 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Because plaintiff did not submit a proposed

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amended complaint, the court is unable to evaluate it as required by law. Plaintiff’s motion for

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leave to amend will be denied.

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Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See 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). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances.

Plaintiff has demonstrated sufficient writing ability and legal knowledge to

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articulate his claims, which are not substantially complex. Appointment of counsel is not

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warranted and plaintiff’s motion will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for leave to amend (Doc. 30) is denied; and

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2.

Plaintiff’s motion for appointment of counsel (Doc. 28) is denied.

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DATED: January 2, 2013
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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