Harrison v. Robbi, et al.

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 3/17/2017 ORDERING plaintiff to submit, within 30 days, an application to proceed ifp; the Clerk shall send plaintiff a new ifp application; plaintiff's 2 motion for appointment of counsel is DENIED without prejudice. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIANA HARRISON, 12 13 14 15 No. 2:17-cv-0507 AC P Plaintiff, v. ORDER ROBBI, et al., Defendants. 16 17 Plaintiff, a county inmate proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. ECF No. 1. Although plaintiff filed a declaration of indigency, she has not filed a 19 proper in forma pauperis application. See 28 U.S.C. § 1915(a). Plaintiff will be provided the 20 opportunity to submit the appropriate application to proceed in forma pauperis. 21 Plaintiff is cautioned that the in forma pauperis application form includes a section that 22 must be completed by a prison official, and the form must be accompanied by a certified copy of 23 plaintiff’s prison trust account statement for the six-month period immediately preceding the 24 filing of this action. 25 Plaintiff has requested appointment of counsel. ECF No. 2. The United States Supreme 26 Court has ruled that district courts lack authority to require counsel to represent indigent prisoners 27 in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 28 exceptional circumstances, the district court may request the voluntary assistance of counsel 1 1 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 2 Wood v. 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 In this case, plaintiff has not yet established that she is indigent and the court has yet to 11 screen the complaint, so it is not clear whether she has any likelihood of success on the merits at 12 this stage. For these reasons, the court is unable to find the necessary exceptional circumstances 13 at this time and finds that appointment of counsel would be premature at this stage of the case. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff shall submit, within thirty days from the date of this order, an application to 16 proceed in forma pauperis on the form provided by the Clerk of Court. Plaintiff’s failure to 17 comply with this order will result in a recommendation that this action be dismissed. 18 19 20 21 2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner. 3. Plaintiff’s motion for appointment of counsel (ECF No. 2) is denied without prejudice. DATED: March 17, 2017 22 23 24 25 26 27 28 2

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