Belyew v. Hornea et al

Filing 4

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

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA BELYEW,

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No. 2:17-cv-0508 AC P
Plaintiff,

v.

ORDER

KORY L. HORNEA, et al.,

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Defendants.

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

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U.S.C. § 1983. ECF No. 1. Although plaintiff has filed a declaration of indigency, she has not

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filed a proper in forma pauperis application. See 28 U.S.C. § 1915(a). Plaintiff will be provided

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the opportunity to submit the appropriate application in support of a request to proceed in forma

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pauperis.

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Plaintiff is cautioned that the in forma pauperis application form includes a section that

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must be completed by a prison official, and the form must be accompanied by a certified copy of

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plaintiff’s prison trust account statement for the six-month period immediately preceding the

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filing of this action.

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Plaintiff has requested the appointment of counsel. ECF No. 2. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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

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

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

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

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

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

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
In this case, plaintiff has not yet established that she is indigent and the court has yet to

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screen the complaint, so it is not clear whether she has any likelihood of success on the merits at

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this stage. For these reasons, the court is unable to find the necessary exceptional circumstances

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at this time and finds that appointment of counsel would be premature at this stage of the case.

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

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

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

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Plaintiff’s failure to comply with this order will result in a recommendation that this action be

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dismissed.

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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

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