McColm v. Trinity County et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 3/26/2014 GRANTING 2 Motion to Proceed IFP; DENYING 4 Motion to Appoint Counsel; DENYING 4 Motion to Stay. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICIA A. McCOLM,
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No. 2:12-cv-1984-MCE-CMK
Plaintiff,
vs.
ORDER
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TRINITY COUNTY, et al.,
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Defendants.
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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is
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plaintiff’s request for leave to proceed in forma pauperis (Doc. 2). Plaintiff’s complaint, and
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service thereof by the United States Marshal if appropriate, will be addressed separately. The
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Clerk of the Court shall not issue summons or set this matter for an initial scheduling conference
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unless specifically directed by the court to do so.
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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that
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plaintiff is unable to prepay fees and costs or give security therefor. Her request to proceed in
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forma pauperis will therefore be granted.
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Plaintiff has also filed a request for the appointment of counsel as well as an order
staying these proceedings (Doc. 4). Plaintiff states that she is now having difficulty accessing a
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law library and her files, presumably due to her recent incarceration.
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The United States Supreme Court has ruled that district courts lack authority to
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require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States
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Dist. Court, 490 U.S. 296, 298 (1989). While plaintiff was not a prisoner at the time she initiated
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this action, she has informed the court she is now located at the Women’s Facility in Chowchilla.
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Either way, however, a plaintiff in a civil case generally has no right to appointed counsel. See
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Hernandez v. Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989); United States v. 30.64 Acres, 795
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F.2d 796, 801 (9th Cir. 1986).
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In certain exceptional circumstances, the court may request the voluntary
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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015,
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1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding
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of “exceptional circumstances” requires an evaluation of both the likelihood of success on the
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merits and the ability of the plaintiff to articulate his claims on his own in light of the complexity
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of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both
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must be viewed together before reaching a decision. See id.
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In the present case, the court does not at this time find the required exceptional
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circumstances. First, the facts and law concerning plaintiff’s claims are not overly complex.
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Second, the record demonstrates that plaintiff so far appears able to articulate her claims on her
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own as her pleadings are legible and articulate. Third, at this early state of the proceedings, the
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court cannot say that plaintiff has demonstrated any particular likelihood of success on the
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merits.
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Similarly, plaintiff has provided no basis on which the court would be required to
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enter an order staying these proceedings. It appears that plaintiff’s request is based solely on her
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recent incarceration. However, the court deals with cases filed and prosecuted by prisoners on a
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daily basis. Plaintiff’s present incarceration is no basis for the court to stay these proceedings for
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an unknown amount of time, and the court is unwilling to enter an indefinite stay in this matter.
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Plaintiff also indicates that she has limited ability to communicate without the use of a computer.
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At present, there is no pending deadline for plaintiff to file any necessary documents. Once the
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court determines whether this action will proceed, and in what manner, plaintiff may be required
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to provide certain information to the court. If plaintiff determines she is unable to respond within
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the time provided by the court, she may request additional time in which to do so. Plaintiff is
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cautioned, however, that if she files such a request, she must inform the court as to the reason
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why she needs additional time and how much additional time she needs.
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is
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Plaintiff’s request for the appointment of counsel (Doc. 4) is denied; and
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3.
Plaintiff’s request to stay these proceedings is denied.
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granted;
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DATED: March 26, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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