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