Ortiz v. California Deparment of Corrections et al

Filing 13

ORDER signed by Magistrate Judge Kendall J. Newman on 11/8/2013 VACATING the 11 findings and recommendations; plaintiff is GRANTED 30 days to file an amended complaint; the Clerk shall re-serve a copy of the 9/4/2013 orders on plaintiff; and plaintiff's 12 motion for the appointment of counsel is DENIED without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSUE ORTIZ,

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Plaintiff,

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No. 2:13-cv-0617 WBS KJN P

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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On October 21, 2013, the undersigned recommended that this action be dismissed based

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on plaintiff’s failure to file an amended complaint as required by this court’s September 4, 2013

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order. Plaintiff timely filed objections, stating he did not receive a copy of the September 4, 2013

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order.

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Review of the court’s docket reflects that an incorrect image was attached to the court’s

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docket, but it does not appear that plaintiff was re-served with a copy of the September 4, 2013

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order. Good cause appearing, the findings and recommendations are vacated, and plaintiff is

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granted an extension of time in which to comply with the September 4, 2013 order.

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In addition, plaintiff requests that the court appoint counsel. District courts lack authority

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to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an
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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The October 21, 2013 findings and recommendations (ECF No. 11) are vacated;

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

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complaint that complies with the September 4, 2013 order;
3. The Clerk of the Court is directed to re-serve a copy of the September 4, 2013 orders
(ECF Nos. 7 & 8) on plaintiff; and
4. Plaintiff’s motion for the appointment of counsel (ECF No. 12) is denied without

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prejudice.

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Dated: November 8, 2013

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/orti0617.31kjn

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