Hoffmann v. Jones

Filing 65

ORDER signed by Magistrate Judge Edmund F. Brennan on 06/11/2020 DENYING 63 Motion to Appoint Counsel. Defendant shall have 7 days to file and serve a stipulation to the dismissal of this action or to otherwise respond to plaintiff's request. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KASEY F. HOFFMAN,

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No. 2:15-cv-1526-JAM-EFB P

Plaintiff,

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v.

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KEVIN JONES,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983, against defendant Jones. He has filed a notice of voluntary dismissal pursuant to

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Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 63. Alternatively, plaintiff requests

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appointment of counsel. Id.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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28 U.S.C. § 1915(e)(1); 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). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case.
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Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action
without a court order by filing:
(i)

a notice of dismissal before the opposing party serves either an answer or a motion
for summary judgment; or

(ii)

a stipulation of dismissal signed by all parties who have appeared.

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Fed. R. Civ. P. 41(a)(1)(A). Before plaintiff filed the notice of voluntary dismissal, defendant

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filed an answer and a motion for summary judgment. ECF Nos. 14 & 34. Therefore, this action

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cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, defendant may stipulate to

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dismissal pursuant to Rule 41(a)(1)(A)(ii). Should defendant decline to stipulate, the court may

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dismiss this action based upon plaintiff’s request, “on terms that the court considers proper.” Fed.

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R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that:

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1. Plaintiff’s request for appointment of counsel (ECF No. 63) is denied; and

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2. Defendant shall have seven days to file and serve a stipulation to the dismissal of this

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action pursuant to Rule 41(a)(1)(A)(ii),1 or to otherwise respond to plaintiff’s request.

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DATED: June 11, 2020.

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In the event defendant so stipulates, the court will construe the parties’ filings as a
stipulation for voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii).
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