Garcia v. California Department of Correction & Rehabilitation, et al

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 5/8/2014 GRANTING plaintiff's 12 request for an extension fo time; plaintiff has 30 days to file an amended complaint ; and DENYING plaintiff's 12 motion for the appointment 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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DANNY R. GARCIA,

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No. 2:13-cv-1952 AC P

Plaintiff,
v.

ORDER

C/O HEATH, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed his second

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request for an extension of time to file an amended complaint pursuant to the court’s order of

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January 22, 2014. Plaintiff has also requested the appointment of counsel.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. Plaintiff’s request for counsel appears to relate primarily to his recent medical concerns.

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Plaintiff indicates that he was interrupted in the preparation of his amended complaint by a

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medical condition which required a hospital stay from which his anticipated return was April 17,

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2014. ECF No. 12. He had received a prior extension of time to file his amended complaint until

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April 21, 2014. ECF No. 11. The court finds good cause to extend further the time for plaintiff

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to file his amended complaint but does not find, in the present case, the required exceptional

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circumstances for appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for an extension of time (ECF No. 12) is granted;

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2. Plaintiff is granted thirty days from the date of this order in which to file an amended

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complaint; and

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3. Plaintiff’s April 21, 2014 motion for the appointment of counsel (ECF No. 12) is

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denied.

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DATED: May 8, 2014

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