Farley v. Virga et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 2/10/2014 GRANTING plaintiff 30 days to submit the copies of the complaint necessary for service; and plaintiff's 21 motion for the appointment of counsel is DENIED without predjudice. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM D. FARLEY,
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No. 2:13-cv-1751 KJN P
Plaintiff,
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v.
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T. VIRGA, et al.,
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ORDER
Defendants.
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
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to 42 U.S.C. § 1983. On January 9, 2014, the court found that plaintiff’s amended complaint
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stated a colorable claim for relief as to defendants Virga, Delaney, May, Higgins, Gonzales,
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Scoggins, Meirs, Hamkar, Curren and Stewart. Plaintiff was directed to return the following
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forms within thirty days necessary to effect service: one summons, ten USM-185 forms and
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eleven copies of the amended complaint.
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On February 4, 2014 plaintiff submitted the summons and USM-285 forms. Plaintiff
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requests an extension of time to submit the copies of the complaints on grounds that he has not
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had adequate law library access. Good cause appearing, this request is granted.
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Plaintiff has also filed a motion for the appointment of counsel. District courts lack
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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.
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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may
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request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1).
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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,
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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court
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must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff
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to 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. It is too early in this action to determine that appointment of counsel is
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warranted.
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In a separate letter, plaintiff requests that the court appoint attorney Mario Desolenni to
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represent him in this action. While the court denies plaintiff’s request for counsel at this time,
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plaintiff may, on his own, seek representation by attorney Desolenni.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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service; and
2. Plaintiff’s motion for the appointment of counsel (ECF No. 21) is denied without
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Plaintiff is granted thirty days to submit the copies of the complaint necessary for
prejudice.
Dated: February 10, 2014
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farl1751.31kjn
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