Lopez v. Krieg, et al.

Filing 32

ORDER signed by Magistrate Judge Allison Claire on 12/17/2013 DENYING plaintiff's 28 motion to file a claim letter and 29 request for the appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD LOPEZ,

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No. 2:13-cv-1176 KJM AC P

Plaintiff,

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v.

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J. KRIEG, et al.,

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ORDER

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff’s June 12, 2013 complaint, ECF No. 1, was served on defendants W.

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Feitcher, J. Krieg, and T. McDow whose response is now due on or before January 31, 2014. See

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ECF No. 31 (order granting extension of time). Service on defendant L.D. Zamora was returned

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unexecuted. ECF No. 25. Currently pending before the court are plaintiff’s “motion with the

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exception of the court to file [a] claim letter under Rule 26(f)” and a motion to appoint counsel.

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ECF Nos. 28, 29.

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In his motion to file a claim under Rule 26(f), plaintiff seeks “to settle [this] dispute

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without having to [engage in] further litigation” and asks the court to grant him the relief

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requested in his complaint. ECF No. 28 at 1-2. Plaintiff does not identify any legal authority for

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this request. Since defendants have not even filed a response to the complaint yet, plaintiff’s

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motion is premature. Therefore, the court will deny the motion.

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Plaintiff has additionally requested the appointment of counsel. ECF No. 29. The United
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States 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 court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the

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court does not find the required exceptional circumstances. Plaintiff’s request for the

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appointment of counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to file a claim letter
(ECF No. 28) and request for the appointment of counsel (ECF No. 29) are denied.
DATED: December 17, 2013

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