Anderson v. Arnold, et al.

Filing 25

ORDER signed by Magistrate Judge Allison Claire on 10/18/16 denying 24 Motion to Appoint Counsel. Plaintiff is granted additional time until Friday, 11/18/16 to file a first amended complaint. (Plummer, M) Modified on 10/19/2016 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CORNELIUS ANDERSON,

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No. 2:14-cv-2660 MCE AC P

Plaintiff,
v.

ORDER

ERIC ARNOLD et al.,
Defendants.

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Plaintiff, a state prisoner at California State Prison Solano, proceeds pro se with a civil

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rights action filed pursuant to 42 U.S.C. § 1983. This case was previously dismissed due to

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plaintiff’s failure to respond to the court’s order directing him to file an amended complaint. See

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ECF Nos. 17, 19, 20. By order filed September 23, 2016, District Judge Morrison C. England

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reopened this case and directed plaintiff to file a First Amended Complaint within thirty (30)

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days. See ECF No. 23. On October 6, 2016, plaintiff filed the pending nine-page document

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construed by the Clerk of Court as a request for appointment of counsel. See ECF No. 24.

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Plaintiff’s new filing, which is largely incoherent, seeks a “good mouth piece lawyer.”

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ECF No. 24 at 1, 2. Plaintiff states that he is 82 years old and disabled; that he has suffered two

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strokes and uses a cane. Plaintiff also states that he is “yes a windbag but ‘character’ caliber

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standard.” Id. at 6. Plaintiff does not discuss the claims he seeks to pursue in this case, or the

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merits of his claims. He does, however, assert misconduct by the undersigned Magistrate Judge
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for previously recommending dismissal of this case; asserts that Judge England’s order adopting

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the undersigned’s prior recommendation was comprised of “rambling lies lies you have a choice

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step carry this or face U.S. Supreme Court Justice Ruth Badger Believe me Sire” (sic); and

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suggests that Judge England could resolve this case if he spoke directly with plaintiff. Id. at 4-5.

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Plaintiff is informed that district courts have no authority to require an attorney to

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voluntarily represent an indigent prisoner in a civil rights action. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). Only in certain exceptional circumstances may a district court

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request the voluntary assistance of a willing attorney. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the

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plaintiff’s likelihood of success on the merits and the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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In addition to these standards, this court is required to consider each plaintiff’s request for

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appointment of counsel in light of the regrettable fact that only a limited number of volunteer

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attorneys are available for appointment. In the present case, the court finds that plaintiff has not

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demonstrated exceptional circumstances warranting appointment of counsel at this time.

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Advanced age and disabilities are circumstances common to many prisoners. More importantly,

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plaintiff has not identified the substance of his anticipated legal claims or underlying facts, and so

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the court is unable to assess the complexity of plaintiff’s claims or his likelihood of success on the

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merits of his claims. For these reasons, plaintiff’s request for appointment of counsel will be

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denied without prejudice.

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Nevertheless, the court will grant plaintiff additional time to file a First Amended

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Complaint. After the filing of his First Amended Complaint, plaintiff may again request

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appointment of counsel. The court will then have a better understanding of the complexity and
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merits of plaintiff’s claims. Plaintiff is admonished, however, to refrain from impugning the

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judges who are reading his materials. The court will continue to construe plaintiff’s pleadings

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liberally and in the light most favorable to plaintiff. Plaintiff, for his part, must state the facts

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supporting his claims clearly and concisely in an Amended Complaint. That complaint will be

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screened according to the standards that have previously been explained to plaintiff. See ECF

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No. 13 (explaining standards for screening pursuant to 28 U.S.C. § 1915A(b)(1)&(2)); ECF No.

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23 (explaining pleading standards under Rule 8, Fed. Rules Civ. Proc., and standards for stating a

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deliberate indifference claim).

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Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request for appointment of counsel, ECF No. 24, is denied without
prejudice.
2. Plaintiff is granted additional time, until Friday, November 18, 2016, to file a First
Amended Complaint.
3. Failure to timely file a First Amended Complaint will result in a recommendation that
this action be dismissed without prejudice.
SO ORDERED.
DATED: October 18, 2016

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