Ford v. Pierce

Filing 40

ORDER signed by Magistrate Judge Deborah Barnes on 11/30/18 DENYING 35 Motion for defendant to file a response and DENYING 39 Motion to Appoint Counsel. (Plummer, M)

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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 DARREN VINCENT FORD, 12 No. 2:17-cv-1928 DB P Plaintiff, 13 v. 14 ORDER C. PIERCE, 15 Defendant. 16 On November 19, 2018, plaintiff, a state prisoner proceeding pro se and in forma pauperis 17 18 with a civil rights action, filed a motion for defendant to file a response to his complaint. (See 19 ECF No. 35). On November 28, 2018, plaintiff filed a motion to appoint counsel.1 (See ECF No. 20 39). For the reasons stated below, the court will deny these motions. 21 I. APPLICABLE LAW The United States Supreme Court has ruled that district courts lack authority to require 22 23 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 24 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary 25 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 26 1 27 28 On the same day, plaintiff also filed “objections” to the court’s November 7, 2018, order which has directed him to show cause why his in forma pauperis status should not be revoked in accord with 28 U.S.C. § 1915(g), the three strikes statute. (See ECF Nos. 31, 38). The court will address this as well as plaintiff’s other outstanding pleading (see ECF No. 36) in a separate order. 1 1 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present 2 case, once again the court does not find the required exceptional circumstances. 3 II. DISCUSSION 4 A. Motion to Appoint Counsel 5 Plaintiff has filed several requests for appointment of counsel prior to the instant one. 6 (See ECF Nos. 21, 22, 32, 33). On November 27, 2018, the court denied each of these motions 7 on the grounds that plaintiff had failed to show that exceptional circumstances existed that 8 warranted such an appointment. (See ECF No. 37). The next day, plaintiff filed yet another 9 motion for appointment of counsel, which the court considers herein. (See ECF No. 39). It appears that the instant request for appointment of counsel and the court’s denial of 10 11 plaintiff’s prior appointment of counsel requests have crossed in the mail. Moreover, plaintiff’s 12 contention that the court’s November 7, 2018, order directing plaintiff to show cause why his in 13 forma pauperis status should not be revoked pursuant to 28 U.S.C. § 1915(g) creates exceptional 14 circumstances which warrant the appointment of counsel under 28 U.S.C. § 1915(e)(1) (see ECF 15 No. 39 at 1-2) is not supported by the law. In addition, plaintiff’s assertion that Terrell and Wood 16 support this argument (see ECF No. 39 at 1-2) is incorrect. These cases simply establish that a 17 finding that exceptional circumstances are present is necessary for counsel to be appointed. See 18 Terrell, 935 F.2d at 1017; see also Wood, 900 F.2d at 1335-36. Plaintiff provides no other legal 19 support for this contention, nor does he provide other facts or arguments that would support a 20 finding that exceptional circumstances exist. (See ECF No. 39). For these reasons, the court will 21 deny plaintiff’s motion to appoint counsel filed November 28, 2018. (See ECF No. 39). 22 B. Motion for Defendant to File a Response 23 As for plaintiff’s motion for defendant to file a response to the complaint (see ECF No. 24 35), as the court recently found in its order issued November 27, 2018, because: (1) the threshold 25 issue that must first be addressed is whether plaintiff should be permitted to continue to proceed 26 with this action with in forma pauperis status; (2) it has yet to be determined that plaintiff has any 27 cognizable claims against defendant, and (3) defendant has yet to be served, plaintiff’s request 28 //// 2 1 that defendant be ordered to file a response to his complaint is premature. (See generally ECF 2 No. 37 at 3). Consequently, this motion will also be denied. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s November 19, 2018, motion for defendant to file a response (ECF No. 35) 5 6 is DENIED, and 2. Plaintiff’s November 28, 2018, request for the appointment of counsel (ECF No. 39) is 7 DENIED. 8 Dated: November 30, 2018 9 10 11 12 DLB:13 DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/ford1928.31(5) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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