Farley v. Virga et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 5/29/14 ORDERING that Plaintiffs motions for an extension of time (ECF Nos. 46 , 49 ) are GRANTED; Plaintiff is granted sixty days from the date of this order in which to file and serve his opposition to defendants motion to dismiss; defendants reply, if any, shall be filed within seven days thereafter; Plaintiffs motion for access to a word processor or typewriter (ECF No. 48 ) is denied; Plaintiffs motion for appointment of counsel (ECF No. 51 ) is denied; and Plaintiffs motion for leave to file an amended complaint (ECF No. 52 ) is denied. (Dillon, M)
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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 has filed two motions for a sixty day extension of time to file and serve an
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opposition to defendants’ May 7, 2014 motion to dismiss. (ECF Nos. 46, 49.) The grounds of
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these motions are that plaintiff is on suicide watch and has limited access to his legal materials
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and the law library. Good cause appearing, plaintiff is granted an extension of sixty days to file
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his opposition.
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On May 23, 2014, plaintiff filed a motion requesting that he be provided with a typewriter
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or word processor in order to prepare his pleadings. Plaintiff apparently does not have access to a
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typewriter or word processor because he is on suicide watch. Plaintiff does not require access to
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a typewriter or word processor in order to prosecute this action. Accordingly, this motion is
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denied.
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Plaintiff has also filed a motion requesting 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.
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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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Plaintiff has filed a motion for leave to file an amended complaint. Plaintiff’s motion was
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not, however, accompanied by a proposed amended complaint. As a prisoner, plaintiff’s
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pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28
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U.S.C. § 1915A. Since plaintiff did not submit a proposed amended complaint, the court is
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unable to evaluate it.
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Good cause appearing, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motions for an extension of time (ECF Nos. 46, 49) are granted;
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2. Plaintiff is granted sixty days from the date of this order in which to file and serve his
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opposition to defendants’ motion to dismiss; defendants’ reply, if any, shall be filed within seven
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days thereafter;
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3. Plaintiff’s motion for access to a word processor or typewriter (ECF No. 48) is denied;
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4. Plaintiff’s motion for appointment of counsel (ECF No. 51) is denied; and
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5. Plaintiff’s motion for leave to file an amended complaint (ECF No. 52) is denied.
Dated: May 29, 2014
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Farl1751.36
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