Knutson v. Spearman
ORDER signed by Magistrate Judge Allison Claire on 09/05/17 DISMISSING 2 Motion to Appoint Counsel. Plaintiff shall submit within 30 days from the date of this order, an application in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the required fees in the amount of $400.00. The clerk of the court is directed to send plaintiff a new application to proceed in forma pauperis by a prisoner. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-1725 AC P
M. E. SPEARMAN, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis application or paid the
required filing fee of $350.00 plus the $50.00 administrative fee.1 See 28 U.S.C. §§ 1914(a),
1915(a). Plaintiff will be provided the opportunity either to submit the appropriate application in
support of a request to proceed in forma pauperis or to submit the required fees totaling $400.00.
Plaintiff has requested the appointment of counsel. The United States Supreme Court has
ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983
cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional
circumstances, the district court may request the voluntary assistance of counsel pursuant to 28
If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee
but will be allowed to pay it in installments. Litigants proceeding in forma pauperis are not
required to pay the $50.00 administrative fee.
U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the
likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,
970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden
of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to
most prisoners, such as lack of legal education and limited law library access, do not establish
exceptional circumstances that would warrant a request for voluntary assistance of counsel.
Plaintiff has not established that he is indigent and therefore cannot show that he qualifies
for appointment of counsel. Furthermore, the court has yet to screen the complaint and is
therefore unable to determine plaintiff’s likelihood of success at this stage. The motion for
counsel will therefore be dismissed without prejudice as premature.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff shall submit, within thirty days from the date of this order, an application in
support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or
the required fees in the amount of $400.00; plaintiff’s failure to comply with this order will result
in a recommendation that this action be dismissed.
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 counsel (ECF No. 2) is dismissed without prejudice as premature.
DATED: September 5, 2017
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