Brown v. CDCR, et al.

Filing 10

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/18/2014 DENYING the 9 motion for appointment of counsel; and the Clerk shall assign this case a district judge; and RECOMMENDING that this action be dismissed without prejudice. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYTHEL BROWN,

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No. 2:14-cv-0999 DAD P

Plaintiff,
v.

ORDER AND

CDCR, et al.

FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. By

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order filed May 30, 2014, plaintiff’s complaint was dismissed, and the court granted thirty days’

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leave to file an amended complaint. The thirty-day period has now expired, and plaintiff has not

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filed an amended complaint.

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Plaintiff’s only communication with the court since it granted him leave to amend his

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complaint is a motion for appointment of counsel. (See Doc. No. 9.) Plaintiff filed that motion

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on a form addressed to (and likely provided by) the San Joaquin County Superior Court. The

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motion is not, strictly speaking, properly submitted to this court; rather, it is a request known in

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California state courts (and in this case, explicitly labeled) as a Marsden motion – that is, a

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challenge by a criminal defendant in state court that his defense counsel has been ineffective and

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needs to be replaced with another lawyer. A Marsden motion seeks relief that only a state court

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in a criminal proceeding, not a federal court, can grant or deny.
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Nevertheless, the court construes all pro se filings liberally. Accordingly, the court

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assumes plaintiff means to ask for the appointment of counsel in this case. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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

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exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on

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the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity

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of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners,

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such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel.

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In this case, the court does not find any exceptional circumstances that warrant the

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appointment of counsel. In fact, the court finds no circumstances warranting any decision except

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dismissal for plaintiff’s failure to submit the factual basics of his claims in an amended complaint,

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as he was given the chance to do. The court clearly explained the necessity that a complaint

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provide enough factual detail to pass the screening test required under 28 U.S.C. 1915A. (Order

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(Doc. No. 6) at 2.) Plaintiff has not attempted to remedy the pleading deficiencies the court found

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in his original complaint – i.e., its lack of “any factual allegations at all” – and the time for doing

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so has expired. (Id.) For these reasons, the court will recommend this case be dismissed without

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prejudice. See Order (Doc. No. 6) at 4; Local Rule 110; Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that the motion for appointment of counsel
(Doc. No. 9) is denied. The Clerk of Court is directed to assign this case to a district judge.
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See
Local Rule 110; Fed. R. Civ. P. 41(b).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: July 18, 2014

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hm
brow0999.fta

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