Reed v. Boim et al

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/29/2014 VACATING the 10/31/2013 findings and recommendations 12 ; within 30 days, plaintiff shall file a completed affidavit to proceed ifp; the Clerk shall send plaintiff a new ifp application; and plaintiff's 10 request for appointment of counsel is DENIED without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS REED,

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No. 2:13-cv-1811-JAM-EFB P
Plaintiff,

v.

ORDER

UNKNOWN,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On October 31, 2013, the court recommended that this action be dismissed after

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plaintiff failed to submit a complaint and either pay the filing fee or apply for in forma pauperis

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status. Thereafter, plaintiff filed a complaint and a partial application to proceed in forma

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pauperis. In light of plaintiff’s filings, the court will vacate the October 31, 2013 findings and

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recommendations. However, the court cannot review plaintiff’s complaint until plaintiff properly

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files an application to proceed in forma pauperis. Plaintiff has filed the required certified trust

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account statement, but has not filed the required affidavit in support of his request to proceed in

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forma pauperis.

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In addition, plaintiff requests appointment of counsel. District courts lack authority to

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

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an
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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th

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Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The October 31, 2013 findings and recommendations (ECF No. 12) are vacated.

2. Within 30 days from the date of this order, plaintiff shall file a completed affidavit in

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support of his application to proceed in forma pauperis. Failure to comply with this

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order may result in another recommendation of dismissal.

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3. The Clerk of the court is directed to send to plaintiff a new form Application to
Proceed In Forma Pauperis by a Prisoner.
4. Plaintiff’s request for appointment of counsel (ECF No. 10) is denied without
prejudice.
DATED: January 29, 2014.

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