Farley v. Virga et al

Filing 53

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM D. FARLEY,

12

No. 2:13-cv-1751 KJN P

Plaintiff,

13

v.

14

T. VIRGA, et al.,

15

ORDER

Defendants.

16
Plaintiff has filed two motions for a sixty day extension of time to file and serve an

17
18

opposition to defendants’ May 7, 2014 motion to dismiss. (ECF Nos. 46, 49.) The grounds of

19

these motions are that plaintiff is on suicide watch and has limited access to his legal materials

20

and the law library. Good cause appearing, plaintiff is granted an extension of sixty days to file

21

his opposition.

22

On May 23, 2014, plaintiff filed a motion requesting that he be provided with a typewriter

23

or word processor in order to prepare his pleadings. Plaintiff apparently does not have access to a

24

typewriter or word processor because he is on suicide watch. Plaintiff does not require access to

25

a typewriter or word processor in order to prosecute this action. Accordingly, this motion is

26

denied.

27

////

28

////

1

Plaintiff has also filed a motion requesting appointment of counsel. District courts lack

2

authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

3

United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

4

request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1).

5

Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

6

1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court

7

must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff

8

to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

9

Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

10

appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

11

Circumstances common to most prisoners, such as lack of legal education and limited law library

12

access, do not establish exceptional circumstances that warrant a request for voluntary assistance

13

of counsel.

14

Having considered the factors under Palmer, the court finds that plaintiff has failed to

15

meet his burden of demonstrating exceptional circumstances warranting the appointment of

16

counsel at this time.

17

Plaintiff has filed a motion for leave to file an amended complaint. Plaintiff’s motion was

18

not, however, accompanied by a proposed amended complaint. As a prisoner, plaintiff’s

19

pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28

20

U.S.C. § 1915A. Since plaintiff did not submit a proposed amended complaint, the court is

21

unable to evaluate it.

22

Good cause appearing, IT IS HEREBY ORDERED that:

23

1. Plaintiff’s motions for an extension of time (ECF Nos. 46, 49) are granted;

24

2. Plaintiff is granted sixty days from the date of this order in which to file and serve his

25

opposition to defendants’ motion to dismiss; defendants’ reply, if any, shall be filed within seven

26

days thereafter;

27

3. Plaintiff’s motion for access to a word processor or typewriter (ECF No. 48) is denied;

28

4. Plaintiff’s motion for appointment of counsel (ECF No. 51) is denied; and
2

1
2

5. Plaintiff’s motion for leave to file an amended complaint (ECF No. 52) is denied.
Dated: May 29, 2014

3
4

Farl1751.36

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3