Hardy v. Davis et al

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 4/22/13 DENYING 2 Motion to Appoint Counsel ; Plaintiff shall submit, within thirty days from the date of this order, either the $350.00 filing fee or a properly completed application to proceed in forma pauperis on the form provided with this order; 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.(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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KRISTIN HARDY,

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Plaintiff,

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vs.

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No. 2:13-cv-0726 DAD P

C. DAVIS, et al.,

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Defendants.

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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. Plaintiff has not paid the required filing fee of $350.00 or filed an

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application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). Plaintiff will be

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granted thirty days to pay the filing fee in full or submit a properly completed application to

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proceed in forma pauperis.

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Plaintiff is cautioned that the in forma pauperis application form includes a

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section that must be completed by a prison official, and the form must be accompanied by a

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certified copy of plaintiff’s prison trust account statement for the six-month period immediately

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preceding the filing of this action.

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Plaintiff has also 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. 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). Terrell v. Brewer, 935 F.2d 1015, 1017

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(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 shall submit, within thirty days from the date of this order, either the

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$350.00 filing fee or a properly completed application to proceed in forma pauperis on the form

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provided with this order; plaintiff is cautioned that failure to comply with this order or seek an

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extension of time to do so will result in a recommendation that this action be dismissed without

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prejudice;

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2. Plaintiff’s April 12, 2013 motion for the appointment of counsel (Doc. No. 2)
is denied; and

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3. The Clerk of the Court is directed to send plaintiff an Application to Proceed

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In Forma Pauperis By a Prisoner for use in a civil rights action.

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DATED: April 22, 2013.

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DAD:kly/4
hard0726.3a

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