Shields v. Cannon et al

Filing 42

ORDER signed by Magistrate Judge Allison Claire on 4/12/13 ORDERING that Plaintiffs motion for clarification (ECF No. 40 ) is granted, as describedabove; Plaintiffs response to defendants motion to dismiss (ECF No. 41 ) shall be filed with the co urt within 60 days of the filing date of this order; Plaintiffs motion to amend the complaint (ECF No. 31 ) is denied as moot, in light of the courts March 18, 2013 order; and Plaintiffs motion for appointment of counsel (ECF No. 30 ) 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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PAUL A. SHIELDS,
Plaintiff,

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Case No. 2:11-cv-3185 JAM AC P

vs.
KELLY L. CANNON, et al.,
Defendants.
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ORDER

Plaintiff is a state prisoner who proceeds pro se and in forma pauperis in this

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action filed pursuant to 42 U.S.C. § 1983. On March 18, 2013, the district judge adopted the

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undersigned’s findings and recommendations filed January 14, 2013, granting defendants’

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motion to dismiss, and giving plaintiff leave to amend his complaint.

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Before the court are several motions from plaintiff: (1) motion to appoint counsel

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(ECF No. 30); (2) motion to amend the complaint (ECF No. 31); and (3) request for clarification

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(ECF No. 40). Plaintiff has also filed his first amended complaint (ECF No. 32), and defendants

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have filed a motion to dismiss the amended complaint (ECF No. 41).

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In his motion for clarification, plaintiff advises the court that he filed his motion
to amend, along with his amended complaint, after entry of the undersigned’s findings and
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recommendations, but before these were adopted by the district judge. See ECF No. 40 at 1. He

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asks if he is required to file another motion to amend.

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Plaintiff’s motion for clarification is granted as follows: the district judge’s order

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granting plaintiff leave to amend his complaint made plaintiff’s motion to amend moot, and the

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action now proceeds on the first amended complaint filed by plaintiff on February 11, 2013.

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Defendants have now moved to dismiss the amended complaint, and plaintiff is required to

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respond to defendants’ motion - either by objection or by notice of non-objection - within the

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time frame set out in the local rules. In light of plaintiff’s need for clarification, however, the

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court will extend plaintiff’s response period for 60 days from the filing date of this order.

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Plaintiff has also requested the appointment of counsel – specifically, he requests

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that Mary Alexander, Esq. be appointed. See ECF No. 30 at 2. The United States Supreme

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

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

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certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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In the present case, the court does not find the required exceptional

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circumstances. Plaintiff has been able to articulate his claims, and any difficulty plaintiff

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currently claims, such as the need to conduct discovery, is not derived from the complexity of

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the issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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Plaintiff argues that he has made repeated efforts to find an attorney, but that

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policy at Duell Vocational Institution prohibits copying letter to lawyers. ECF No. 30 at 2. It is

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not clear from plaintiff’s statement whether prison policy is prohibiting him from

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communicating with attorneys; however, the court notes that plaintiff is no longer housed at

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Duell, and is instead currently housed at Mule Creek State Prison, whose policy plaintiff does

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not disclose. It is also unclear from plaintiff’s motion if Ms. Alexander consents to be plaintiff’s
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attorney, and, if she does, how plaintiff has been able to communicate with Ms. Alexander.

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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s motion for clarification (ECF No. 40) is granted, as described

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above;

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2. Plaintiff’s response to defendants’ motion to dismiss (ECF No. 41) shall be
filed with the court within 60 days of the filing date of this order;

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3. Plaintiff’s motion to amend the complaint (ECF No. 31) is denied as moot, in
light of the court’s March 18, 2013 order; and

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4. Plaintiff’s motion for appointment of counsel (ECF No. 30) is denied.
DATED: April 12, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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ac:rb
shie3185.31

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