Logan v. Horwitz, et al.

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 02/10/15 ordering plaintiff shall submit within 30 days from the date of this order, a certified copy of his prison trust account statement for the 6 month period immediately preceding the filing of the complaint. The Clerk of the Court is directed to send plaintiff a new application to proceed in forma pauperis by a prisoner. Plaintiff's motion for the appointment of counsel 8 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:15-cv-00121 AC P

Plaintiff,
v.

ORDER

EVALYN HORWITZ, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983. On January 27, 2015, plaintiff was directed to submit an application to proceed in

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forma pauperis on the proper form. Plaintiff has now filed a request for leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. ECF. No. 7. Plaintiff has not, however, filed a certified

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copy of his prison trust account statement for the six month period immediately preceding the

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filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be provided the opportunity to

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submit the completed application and the certified copy in support of his application to proceed in

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forma pauperis.

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Plaintiff has also requested the appointment of counsel. ECF. No. 8. 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). In

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certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Plaintiff’s request for the appointment of counsel will therefore be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff shall submit, within thirty days from the date of this order, a certified copy of

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his prison trust account statement for the six month period immediately preceding the filing of the

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complaint. Plaintiff’s failure to comply with this order will result in a recommendation that this

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action be dismissed without prejudice;

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2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In
Forma Pauperis By a Prisoner; and
3. Plaintiff’s motion for the appointment of counsel (ECF No. 8) is denied.
DATED: February 10, 2015

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