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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, 12 13 14 No. 2:17-cv-0508 AC P Plaintiff, v. ORDER KORY L. HORNEA, et al., 15 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 has filed a declaration of indigency, she has not 19 filed a proper in forma pauperis application. See 28 U.S.C. § 1915(a). Plaintiff will be provided 20 the opportunity to submit the appropriate application in support of a request to proceed in forma 21 pauperis. 22 Plaintiff is cautioned that the in forma pauperis application form includes a section that 23 must be completed by a prison official, and the form must be accompanied by a certified copy of 24 plaintiff’s prison trust account statement for the six-month period immediately preceding the 25 filing of this action. 26 Plaintiff has requested the appointment of counsel. ECF No. 2. The United States 27 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 28 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 1 1 certain exceptional circumstances, the district court may request the voluntary assistance of 2 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 3 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 4 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 5 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 6 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 7 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 8 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 9 most prisoners, such as lack of legal education and limited law library access, do not establish 10 11 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 12 screen the complaint, so it is not clear whether she has any likelihood of success on the merits at 13 this stage. For these reasons, the court is unable to find the necessary exceptional circumstances 14 at this time and finds that appointment of counsel would be premature at this stage of the case. 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in 17 support of her request to proceed in forma pauperis on the form provided by the Clerk of Court. 18 Plaintiff’s failure to comply with this order will result in a recommendation that this action be 19 dismissed. 20 21 22 23 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 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?