Ontiveros v. California Department of Corrections and Rehabilitation et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
HERMAN RENE ONTIVEROS,
No. 2:17-cv-1740 CKD P
CALIFORNIA DEPARTMENT OF
REHABILITATION, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42
U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Plaintiff has not, however, filed his application for leave to proceed in forma
pauperis on the form used by this district. Accordingly, plaintiff’s application will be dismissed
and plaintiff will be provided the opportunity to submit the application on the appropriate form.
Plaintiff also requests that the court appoint counsel. District courts lack authority to
require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States
Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an
attorney to voluntarily represent such a plaintiff. See 28 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, the court must consider
plaintiff’s 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) (district court did not abuse discretion in declining to appoint counsel).
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 warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
counsel at this time.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is dismissed without
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
application to proceed in forma pauperis. Plaintiff’s failure to comply with this order will result
in dismissal; and
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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