Thomas v. Roberts et al

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/28/2017 GRANTING plaintiff's 20 request for an extension of time to file an amended complaint; plaintiff shall file his amended complaint within 30 days; failure to file an amended complaint within 30 days will result in dismissal; and plaintiff's 20 motion for the appointment of counsel is DENIED. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOSH THOMAS,

12
13
14

No. 2:16-cv-0724 CKD P
Plaintiff,

v.

ORDER

BRIAN ROBERTS, et al.,

15

Defendants.

16
17

Plaintiff has filed a request for an extension of time to file an amended complaint. Good

18

cause appearing, plaintiff’s request will be granted. Plaintiff’s amended complaint will be due

19

within 30 days,

20

Plaintiff has also requested appointment of counsel. The court cannot require an attorney

21

to represent a plaintiff who cannot pay for the attorney’s services. Mallard v. United States Dist.

22

Court, 490 U.S. 296, 298 (1989). However, under the federal in forma pauperis statute, 28 U.S.C.

23

§ 1915, the court may request that an attorney represent a person unable to afford counsel. 28

24

U.S.C. § 1915(e)(1). The court will make that request only when there are exceptional

25

circumstances. When determining whether “exceptional circumstances” exist, the court

26

considers, among other things, plaintiff's likelihood of success on the merits as well as the ability

27

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

28

involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). While the court is aware of the
1

1

difficulties attendant to litigating an action while incarcerated, circumstances common to most

2

prisoners do not establish “exceptional circumstances.”

3
4

In the present case, the court does not find the required exceptional circumstances at this
stage of these proceedings.

5

Accordingly, IT IS HEREBY ORDERED that:

6

1. Plaintiff’s request for an extension of time to file an amended complaint (ECF No. 20)

7

is granted;

8

2. Plaintiff shall file his amended complaint within 30 days;

9

3. Failure to file an amended complaint within 30 days will result in dismissal; and

10
11

4. Plaintiff’s motion for the appointment of counsel is denied.
Dated: February 28, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17

1
thom0724.ext

18
19
20
21
22
23
24
25
26
27
28

2