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Bowen v. McAlpine

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 5, 2008

JERRY BOWEN, PLAINTIFF,
v.
MCALPINE, ET AL., DEFENDANTS.

ORDER

Plaintiff is a former state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis. Because plaintiff is no longer in state custody, the court will not issue an order to the Director of the California Department of Corrections and Rehabilitation concerning the payment of the filing fee.

Plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

Plaintiff has also 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 court may request the voluntary assistance of counsel pursuant to 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). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's May 22, 2008 application to proceed in forma pauperis (Doc. No. 2) is granted.

2. Service of the complaint is appropriate for the following defendants: McAlpine, L. Gandy, S. Swift, A. Chand, M. Adkins, L. Dacil, X. Vang, A. Harwell, Brown, Chapell-Evans, Price, Viernes, P. Steffens, J. Purdy, G. Mason, and J. Hazelwood.

3. The Clerk of the Court shall send plaintiff sixteen USM-285 forms, one summons, an instruction sheet, and a copy of the complaint filed May 22, 2008.

4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 2 above; and

d. Seventeen copies of the endorsed complaint filed May 22, 2008.

5. Plaintiff shall not attempt to effect service of the complaint on defendants or request a waiver of service of summons from any defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

6. Plaintiff's May 22, 2008 motion for the appointment of counsel (Doc. No. 3), is denied.

NOTICE OF SUBMISSION OF DOCUMENTS

/ Plaintiff hereby submits the following documents in compliance with the court's order filed one completed summons form; [#] completed USM-285 forms; and [#] true and exact copies of the complaint filed [date]. DATED: . Plaintiff

20080905

© 1992-2008 VersusLaw Inc.



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