Childs v. State of California et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/25/13 ORDERING that the order dismissing this action 13 is VACATED and the Clerk of the Court is directed to re-open the case. Plaintiffs request for counsel 15 is DENIED. The court will screen the amended complaint 16 pursuant to 28 U.S.C. § 1915A in due course. (Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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E. CHILDS,
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No. 2:13-cv-670-EFB P
Plaintiff,
v.
ORDER
STATE OF CALIFORNIA, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28
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U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See 28 U.S.C.
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§ 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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On October 8, 2013, the court dismissed plaintiff’s complaint for failure to state a claim.
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ECF No. 10. The dismissal order explained the complaint’s deficiencies, gave plaintiff 30 days to
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file an amended complaint correcting those deficiencies, and warned plaintiff that failure to file
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an amended complaint would result in this action being dismissed for failure to state a claim. The
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30-day period expired and plaintiff did not file an amended complaint. Accordingly, the court
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dismissed this action failure to state a claim and for failure to prosecute. ECF No. 13.
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On the same day, however, plaintiff filed a request for counsel and an amended complaint.
ECF Nos. 15, 16. In light of these filings, the order of dismissal will be vacated.
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District courts lack authority to require counsel to represent indigent prisoners in section
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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional
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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See
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28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional
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circumstances” exist, the court must consider the likelihood of success on the merits as well as the
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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues
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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,
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the court finds there are no exceptional circumstances in this case.
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Therefore, IT IS HEREBY ORDERED that:
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1. The order dismissing this action (ECF No. 13) is vacated and the Clerk of the Court is
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directed to re-open the case.
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2. Plaintiff’s request for counsel (ECF No. 15) is denied.
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3. The court will screen the amended complaint (ECF No. 16) pursuant to 28 U.S.C.
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§ 1915A in due course.
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Dated: November 25, 2013.
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