Madrid v. Virga

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 7/28/11 ORDERING that plaintiffs 18 first amended complaint is DISMISSED with leave to amend within 30 days. Plaintiff's 16 Motion to Appoint Counsel is DENIED.(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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ANDREW MADRID,
Plaintiff,

ORDER

vs.

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No. 2:11-cv-1607 WBS KJN P

Defendant.

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TIM VIRGA,

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Plaintiff is a state prisoner proceeding without counsel. On July 26, 2011,

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plaintiff filed a first amended complaint that was entered on the docket on July 27, 2011.

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However, on July 27, 2011, the undersigned issued an order screening plaintiff’s original

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complaint. Thus, plaintiff’s amended complaint was filed without benefit of the court’s July 27,

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2011 screening order. The court has reviewed plaintiff’s amended complaint and finds that it

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suffers from many of the same defects addressed in this court’s July 27, 2011 order.

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Accordingly, plaintiff’s July 26, 2011 amended complaint is dismissed with leave to amend.

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Plaintiff shall file a second amended complaint that complies with this court’s July 27, 2011

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order.

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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. Therefore, plaintiff’s motion for the

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appointment of counsel is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s July 26, 2011 first amended complaint (dkt. no. 18) is dismissed

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with leave to amend.
2. Within thirty days from the date of this order, plaintiff shall submit the

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previously provided Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights

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Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

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complaint must also bear the docket number assigned to this case and must be labeled, “Second

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Amended Complaint.” Failure to file a second amended complaint in accordance with this order

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and the July 27, 2011 order, may result in the dismissal of this action.
3. Plaintiff’s July 26, 2011 motion for the appointment of counsel is denied.

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DATED: July 28, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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