Lopez v. Colusa County Sheriff Dept. et al

Filing 28

ORDER signed by Magistrate Judge Dale A. Drozd on 03/28/13 ordering plaintiff's motion for leave to amend 23 is denied without prejudice. Plaintiff's motion for appointment of counsel 23 is denied. (Plummer, 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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JESUS ANDRES LOPEZ,
Plaintiff,

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No. 2:12-cv-1571 DAD P

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

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Defendants.
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ORDER
/

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Plaintiff is a state prisoner proceeding pro se with this civil rights action seeking
relief pursuant to 42 U.S.C. § 1983.
On February 8, 2013, plaintiff filed a motion for leave to amend his complaint.

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Plaintiff’s motion was not, however, accompanied by a proposed amended complaint as required.

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As a prisoner, plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma

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pauperis statute. See 28 U.S.C. § 1915A. Since plaintiff did not submit a proposed amended

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complaint, the court is unable to evaluate plaintiff’s motion and proposed amended complaint.

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Accordingly, the court will deny plaintiff’s motion to amend at this time.

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Plaintiff has also requested appointment of counsel. 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 district court may request the voluntary assistance of

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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).

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

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1. Plaintiff’s motion for leave to amend (Doc. No. 23) is denied without

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prejudice; and
2. Plaintiff’s motion for appointment of counsel (Doc. No. 23) is denied.

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DATED: March 28, 2013.

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DAD:9
lope1571.31

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