Ontiveros v. California Department of Corrections and Rehabilitation et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/24/2017 DISMISSING without prejudice 2 Motion to Proceed IFP and DENYING 3 Motion to Appoint Counsel. Plaintiff to submit, within 30 days from the date of this order, a completed application to proceed IFP. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HERMAN RENE ONTIVEROS,

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No. 2:17-cv-1740 CKD P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Plaintiff has not, however, filed his application for leave to proceed in forma

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pauperis on the form used by this district. Accordingly, plaintiff’s application will be dismissed

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and plaintiff will be provided the opportunity to submit the application on the appropriate form.

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Plaintiff also requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider
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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is dismissed without

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prejudice;
2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In
Forma Pauperis By a Prisoner;
3. Plaintiff shall submit, within thirty days from the date of this order, a completed

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application to proceed in forma pauperis. Plaintiff’s failure to comply with this order will result

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in dismissal; and

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4. Plaintiff’s motion for the appointment of counsel (ECF No. 3) is denied.
Dated: August 24, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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