Carroll v. State of California et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 10/12/16 ORDERING that the September 21, 2016 findings and recommendations (ECF No. 8 ) are VACATED; Plaintiff's motion for extension of time (ECF No. 9 ) is GRANTED; plaintiff is grant ed 30 days from the date of this order to file his application to proceed in forma pauperis; failure to file this application within that time will result in recommendation of dismissal of this action; Plaintiff's motions for appointment of counsel (ECF Nos. 3 , 9 ) are DENIED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREMAYNE DEON CARROLL,

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No. 2:16-cv-1759 TLN KJN P

Plaintiff,
v.

ORDER

STATE OF CALIFORNIA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On September 21, 2016, the undersigned recommended that this action be

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dismissed based on plaintiff’s failure to file an in forma pauperis application.

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On September 22, 2016, plaintiff filed a request for an extension of time to file his in

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forma pauperis application. Good cause appearing, the findings and recommendations are

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vacated, and plaintiff is granted thirty days to file his in forma pauperis application.

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Plaintiff also filed two separate requests for appointment of counsel. District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell

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

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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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 warrant a request for voluntary assistance

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of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The September 21, 2016 findings and recommendations (ECF No. 8) are vacated;

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2. Plaintiff’s motion for extension of time (ECF No. 9) is granted; plaintiff is granted

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thirty days from the date of this order to file his application to proceed in forma pauperis; failure

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to file this application within that time will result in recommendation of dismissal of this action;

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3. Plaintiff’s motions for appointment of counsel (ECF Nos. 3, 9) are denied.
Dated: October 12, 2016

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