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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:12-cv-0556 GEB DB P

ORDER

SCOTT KERNAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges defendants failed to transfer him to a mental health facility in

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violation of a state court order. In an order filed September 22, 2017, this court found plaintiff’s

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third amended complaint stated potentially cognizable claims against all defendants. The

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defendants who have already appeared in this action were ordered to respond to the third

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amended complaint. With respect to the fifteen new defendants, the court ordered plaintiff to

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submit service documents within thirty days. (ECF No. 171.)

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On September 29, 2017, plaintiff submitted service documents for just two of the new

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defendants, M. Ledesma and T. Murray. (See ECF No. 172.) Also on September 29, plaintiff

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filed a motion for an extension of time to submit the remaining service documents. (ECF No.

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173.) The court finds good cause for an extension of time.

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Plaintiff has also filed two motions for the appointment of counsel. In the first, plaintiff

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simply references his third amended complaint. (ECF No. 163.) In the second motion, plaintiff

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attaches copies of health care services requests he has apparently submitted to the prison for

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health care supplies to care for a skin disease, to address dental problems, and regarding other

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health issues. (ECF No. 169.)

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

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Further, plaintiff is advised that if he has complaints about his current health care, they may not

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be raised in this case, which addresses only the delay in his transfer to a mental health facility.

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Accordingly, and good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 173) is granted;

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2. Plaintiff is granted thirty days from the date of this order in which to submit the

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necessary documents for service;
3. Plaintiff’s motions for the appointment of counsel (ECF Nos. 163, 169) are denied.
Dated: October 4, 2017

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DLB:9
DLB1/prisoner-civil rights/gipb0556.36usm

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