Carroll v. Spearman

Filing 11

ORDER signed by Magistrate Judge Deborah Barnes on 8/16/2017 DENYING 10 Motion to Appoint Counsel and GRANTING 10 Motion for Extension of Time. Plaintiff granted 60 days from the date of this order in which to file an amended complaint. (Henshaw, R)

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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 TREMAYNE DEON CARROLL, 12 13 14 15 No. 2:17-cv-0862 DB P Plaintiff, v. ORDER SPEARMAN, et al., Defendants. 16 17 18 19 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested appointment of counsel and an extension of time to file an amended complaint. The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 27 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 establish exceptional circumstances that would warrant a request for voluntary assistance of 2 counsel. In the present case, the court does not find the required exceptional circumstances. As 3 stated in the court’s screening order filed on July 26, 2017, most or all of plaintiff’s claims in this 4 case are duplicative of claims plaintiff raised in a prior case in this court. 5 In addition, plaintiff has requested an extension of time to file an amended complaint 6 pursuant to the court’s order of July 26, 2017. Good cause appearing, IT IS HEREBY 7 ORDERED that: 8 1. Plaintiff’s motion for the appointment of counsel (ECF No. 10) is denied; 9 2. Plaintiff’s motion for an extension of time (ECF No. 10) is granted; and 10 3. Plaintiff is granted sixty days from the date of this order in which to file an amended 11 complaint. 12 DATED: August 16, 2017 13 14 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 DLB:9 DLB1/prisoner-civil rights/carr0862.31+36amc 28 2

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