Carroll v. Brown et al

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 10/23/12 ORDERING that plaintiffs 3 request for leave to proceed in forma pauperis is DENIED without prejudice; The Clerk of the Court is directed to send plaintiff an Application to Procee d In Forma Pauperis By a Prisoner for use in a civil rights action; Plaintiff shall submit, within 30 days from the date of this order, a properly completed application to proceed in forma pauperis; and Plaintiffs 3 motion for appointment of counsel is DENIED.(Dillon, 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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TREMAYNE D. CARROLL,

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Plaintiff,

No. 2: 12-cv-2584 DAD P

vs.
EDMUND G. BROWN, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis. Plaintiff has

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not submitted his in forma pauperis request on a proper form.

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Plaintiff’s request for leave to proceed in forma pauperis will be denied, and

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plaintiff will be granted thirty days to submit a new request on a proper form. Plaintiff is

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cautioned that the form in forma pauperis application includes a section that must be completed

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by a prison official, and must be accompanied by a certified copy of plaintiff’s prison trust

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account statement for the six-month period immediately preceding the filing of this action.

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In addition, plaintiff has requested the appointment of counsel. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). In certain exceptional circumstances, the district 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).

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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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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 17, 2012 request for leave to proceed in forma pauperis

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(Docket No. 3) is denied without prejudice;

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2. The Clerk of the Court is directed to send plaintiff an Application to Proceed
In Forma Pauperis By a Prisoner for use in a civil rights action;

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3. Plaintiff shall submit, within thirty (30) days from the date of this order, a

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properly completed application to proceed in forma pauperis on the form provided with this

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order; plaintiff is cautioned that failure to comply with this order or seek an extension of time to

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do so will result in a recommendation that this action be dismissed without prejudice; and

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4. Plaintiff’s October 17, 2012 motion for appointment of counsel (Docket No. 3)

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is denied.

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DATED: October 23, 2012.

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DAD:dpw
carr2584.3d+31

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