Smith v. Aubuchon, et al.
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 1/10/17 ORDERING that plaintiff's motion for an extension of time (Doc. 49 ) is GRANTED; Plaintiff may file objections to the court's September 9, 2016, findings andrecommendations within 30 days of the date of this order; and plaintiff's motion for the appointment of counsel (Doc. 50 ) is DENIED.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM GRANVILLE SMITH,
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No. 2:14-CV-0775-KJM-CMK-P
Plaintiff,
vs.
ORDER
B. AUBUCHON, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
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42 U.S.C. § 1983. Pending before the court are plaintiff’s motion for an extension of time (Doc.
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49) and plaintiff’s motion for appointment of counsel (Doc. 50).
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Plaintiff seeks an extension of time to file objections to the court’s September 9,
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2016, findings and recommendations. Good cause appearing therefor, the request is granted.
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Plaintiff’s objections will be due within 30 days of the date of this order.
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Plaintiff seeks the appointment of counsel. The United States Supreme Court has
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ruled that district courts lack authority to require counsel to represent indigent prisoners in
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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain
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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to
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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional
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circumstances” requires an evaluation of both the likelihood of success on the merits and the
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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be
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viewed together before reaching a decision. See id.
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In the present case, the court does not at this time find the required exceptional
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circumstances. First, plaintiff does not allege the existence of exceptional circumstances. In his
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motion, plaintiff states that counsel should be appointed because he is indigent, he is
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incarcerated, and he is untrained in the law. Far from constituting exceptional circumstances,
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plaintiff’s circumstance is common to nearly every prisoner. Second, as in Terrell, plaintiff has
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demonstrated sufficient writing ability and legal knowledge to articulate his claims and the facts
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he alleges and the issues he raises are not of substantial complexity. See id. Finally, at this
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stage of the proceedings before an answer has been filed or any discovery has been conducted,
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the court is unable to say that plaintiff has demonstrated a likelihood of success on the merits of
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his claims.
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion for an extension of time (Doc. 49) is granted;
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2.
Plaintiff may file objections to the court’s September 9, 2016, findings and
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recommendations within 30 days of the date of this order; and
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Plaintiff’s motion for the appointment of counsel (Doc. 50) is denied.
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DATED: January 10, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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