Hann v. Sacramento County Sheriff Department

Filing 10

ORDER signed by Magistrate Judge John F. Moulds on 3/23/12 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Clerk of the Court is directed to serve a copy of p laintiffs complaint and plaintiffs December 19, 2011 motion for discovery on Robert J. Ryan, Sacramento County Counsel, 700 H Street, Suite 2650, Sacramento, CA 95814. Within thirty days from the date of this order, Sacramento County Counsel Ryan or his designee shall file and serve a response to plaintiffs motion for discovery; 8 Motion to Appoint Counsel is DENIED without prejudice.(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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EVAN E. HANN,

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Plaintiff,

No. 2:11-cv-3368 JFM (PC)

vs.
SACRAMENTO COUNTY
SHERIFF’S DEPARTMENT,
et al.,

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Defendants.

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/

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ORDER

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

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee

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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

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U.S.C. § 1915(b)(2).

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Plaintiff’s complaint states a cognizable claim for relief against unnamed

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

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complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this

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action. However, the court cannot order service until plaintiff can identify defendants. To that

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end, plaintiff has filed a motion for discovery. Good cause appearing, the court will serve a copy

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of plaintiff’s complaint and his motion for discovery on the Sacramento County Counsel and

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order a response to said motion.

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On March 15, 2012, plaintiff filed a motion for the appointment of counsel. The

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

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

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

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of 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 without prejudice to its renewal, as appropriate,

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at a later stage of these proceedings.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. The Clerk of the Court is directed to serve a copy of plaintiff’s complaint and

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plaintiff’s December 19, 2011 motion for discovery on Robert J. Ryan, Sacramento County

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Counsel, 700 H Street, Suite 2650, Sacramento, CA 95814.

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4. Within thirty days from the date of this order, Sacramento County Counsel
Ryan or his designee shall file and serve a response to plaintiff’s motion for discovery.

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5. Plaintiff’s March 15, 2012 motion for appointment of counsel is denied
without prejudice..
DATED: March 23, 2012.

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12hann3368.scr

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