Smith v. Aubuchon, et al.

Filing 62

ORDER signed by Magistrate Judge Craig M. Kellison on 06/05/17 granting 57 Motion for Extension of time. Plaintiff's second amended complaint filed on 5/22/17 is deemed timely. Plaintiff's motion for the appointment of counsel 59 is denied. (Plummer, 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 (1) plaintiff’s motion for an extension of time

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(Doc. 57) and (2) plaintiff’s motion for the appointment of counsel (Doc. 59).

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Plaintiff seeks additional time to file a second amended complaint pursuant to the

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court’s March 21, 2017, order. Good cause appearing therefor, the extension will be granted.

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Plaintiff’s second amended complaint filed on May 22, 2017, is deemed timely.

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Plaintiff also seeks the appointment of counsel. The United States Supreme Court

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has 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. Plaintiff’s current motion for the appointment of counsel sets forth no specific

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circumstances whatsoever. Rather, plaintiff merely recites the legal standard outlined above

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without explaining how circumstances in his case meet that standard. Plaintiff has not submitted

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anything new which would change the analysis set forth in the court’s January 10, 2017, order

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denying plaintiff’s prior motion for the appointment of counsel (see Doc. 55).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for an extension of time (Doc. 57) is granted;

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2.

Plaintiff’s second amended complaint filed on May 22, 2017, is deemed

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Plaintiff’s motion for the appointment of counsel (Doc.59) is denied.

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timely; and

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DATED: June 5, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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