Simms v. Hadley et al

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 09/28/16 ordering plaintiff shall submit within 30 days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the clerk of the cour t and 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 shall send plaintiff a new application to proceed in forma pauperis by a prisoner. Plaintiff's motion to appoint counsel 2 is denied without prejudice to renewal at a later stage of the proceedings. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT LEE SIMMS,

12

Plaintiff,

13
14

No. 2:16-cv-2221 AC P

v.

ORDER

ROBERT HADLEY, et al.,

15

Defendants.

16
Plaintiff, a county inmate proceeding pro se, has filed a civil rights action pursuant to 42

17
18

U.S.C. § 1983. Plaintiff has also filed a request for appointment of counsel and declaration of

19

indigency. ECF No. 2. Plaintiff has not, however, filed a properly completed application to

20

proceed in forma pauperis or a certified copy of his prison trust account statement for the six

21

month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).

22

Plaintiff will be provided the opportunity to submit a complete affidavit and certified copy of his

23

prison trust account statement.

24

As for plaintiff’s request for appointment of counsel, the United States Supreme Court has

25

ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983

26

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

27

circumstances, the district court may request the voluntary assistance of counsel pursuant to 28

28

////
1

1

U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

2

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

3

“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

4

likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

5

pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

6

970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

7

of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

8

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

9

exceptional circumstances that would warrant a request for voluntary assistance of counsel.

10

The only justifications for appointment of counsel that plaintiff offers are that he is unable

11

to afford counsel and that he requests counsel to protect his interests. ECF No. These

12

circumstances are not uncommon and do not constitute exceptional circumstances. The court has

13

also not yet had an opportunity to screen the complaint and is therefore unable to determine

14

plaintiff’s likelihood of success on the merits and ability to articulate his claims at this time. The

15

motion for counsel will therefore be denied without prejudice to renewal at a later stage of the

16

proceedings.

17

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

18

1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in

19

support of his request to proceed in forma pauperis on the form provided by the Clerk of Court

20

and a certified copy of his prison trust account statement for the six month period immediately

21

preceding the filing of the complaint. Plaintiff’s failure to comply with this order will result in a

22

recommendation that this action be dismissed.

23

2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In

24

Forma Pauperis By a Prisoner.

25

////

26

////

27

////

28

////
2

1

3. Plaintiff’s motion for appointment of counsel is denied without prejudice to renewal at

2

a later stage of the proceedings.

3

DATED: September 28, 2016

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3