Lavery v. Dhillon

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 01/03/14 ordering plaintiff's requests for appointment of counsel 24 , 26 are denied. Plaintiff's motions for an extension of time 26 , 27 are granted. Plaintiff is granted 30 days from the date of this order in which to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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No. 2:13-cv-2083 MCE AC P

Plaintiff,
v.

ORDER

B. DHILLON, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed an action pursuant to 42 U.S.C. § 1983,

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which was transferred to this court on October 8, 2013. ECF No. 15. By order filed on

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November 22, 2013, plaintiff’s complaint was dismissed with leave to amend within 28 days and

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his request for appointment of counsel was denied. ECF No. 21. Plaintiff has subsequently filed

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additional requests for appointment of counsel and motions for extensions of time to file an

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amended complaint. ECF Nos. 24, 26, 27.

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Plaintiff has been previously informed that the United States Supreme Court has ruled that

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district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases.

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Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional

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circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

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1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

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F.2d 1332, 1335-36 (9th Cir. 1990). In support of his motions for appointment of counsel,

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plaintiff submits documentation indicating he suffered a brain injury as a result of a forklift

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accident in 1982. ECF No. 25. Plaintiff also produces mental health treatment records from 2001

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indicating he suffers from serious cognitive/memory deficits. Id. In 2001, he was apparently

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placed in the E.O.P. (Enhanced Outpatient Program) level of care. Id. Nevertheless, plaintiff’s

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original complaint simply did not frame colorable claims and it is not at all clear that appointment

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of counsel could rectify such an infirmity. In addition, many inmates suffer from deficits but

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nevertheless by necessity proceed pro se. Therefore, in the present case, the court does not find

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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will

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therefore be denied, but plaintiff is informed that any amended pleadings will be liberally

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construed. In addition the court will grant plaintiff’s requests for extension of time to file an

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amended complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s requests for the appointment of counsel (ECF Nos. 24, 26) are denied.

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1. Plaintiff’s motions for an extension of time (ECF Nos. 26, 27) are 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.

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DATED: January 3, 2014

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