Gipbsin v. Kernan, et al

Filing 176

ORDER signed by Magistrate Judge Deborah Barnes on 10/04/17 GRANTING 173 Motion for Extension of time and DENYING 163 , 169 Motions to Appoint Counsel. Plaintiff is granted 30 days from the date of this order in which to submit the necessary documents for service. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CLARENCE A. GIPBSIN, 11 Plaintiff, 12 13 14 v. No. 2:12-cv-0556 GEB DB P ORDER SCOTT KERNAN, et al., Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 17 42 U.S.C. § 1983. Plaintiff alleges defendants failed to transfer him to a mental health facility in 18 violation of a state court order. In an order filed September 22, 2017, this court found plaintiff’s 19 third amended complaint stated potentially cognizable claims against all defendants. The 20 defendants who have already appeared in this action were ordered to respond to the third 21 amended complaint. With respect to the fifteen new defendants, the court ordered plaintiff to 22 submit service documents within thirty days. (ECF No. 171.) 23 On September 29, 2017, plaintiff submitted service documents for just two of the new 24 defendants, M. Ledesma and T. Murray. (See ECF No. 172.) Also on September 29, plaintiff 25 filed a motion for an extension of time to submit the remaining service documents. (ECF No. 26 173.) The court finds good cause for an extension of time. 27 Plaintiff has also filed two motions for the appointment of counsel. In the first, plaintiff 28 simply references his third amended complaint. (ECF No. 163.) In the second motion, plaintiff 1 attaches copies of health care services requests he has apparently submitted to the prison for 2 health care supplies to care for a skin disease, to address dental problems, and regarding other 3 health issues. (ECF No. 169.) 4 The United States Supreme Court has ruled that district courts lack authority to require 5 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 6 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 7 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 8 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 9 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 10 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 11 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 12 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 13 common to most prisoners, such as lack of legal education and limited law library access, do not 14 establish exceptional circumstances that would warrant a request for voluntary assistance of 15 counsel. In the present case, the court does not find the required exceptional circumstances. 16 Further, plaintiff is advised that if he has complaints about his current health care, they may not 17 be raised in this case, which addresses only the delay in his transfer to a mental health facility. 18 Accordingly, and good cause appearing, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motion for an extension of time (ECF No. 173) is granted; 20 2. Plaintiff is granted thirty days from the date of this order in which to submit the 21 22 23 necessary documents for service; 3. Plaintiff’s motions for the appointment of counsel (ECF Nos. 163, 169) are denied. Dated: October 4, 2017 24 25 26 27 DLB:9 DLB1/prisoner-civil rights/gipb0556.36usm 28 2

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