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Meyer v. Schwarzenegger

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


June 16, 2009

KEVIN RUSSELL MEYER, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions to dismiss a portion of the first amended complaint (Doc. #72) and motion to appoint counsel (Doc. #73). Defendants have not filed responses.

Plaintiff has requested that a portion of his claim related to a February 28, 2005, referral by defendant Akintola to an orthopedic consultation be dismissed. See ¶ 40, First Amended Complaint. This portion of the claims against Akintola is dismissed.

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 motion for the appointment of counsel will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's May 19, 2009, motion to dismiss a portion of the first amended complaint (Doc. #72) is granted. The portion of the claims against Akintola concerning the February 28, 2005, orthopedic referral will be dismissed. The remaining claims against Akintola will continue.

2. Plaintiff's June 9, 2009 motion for the appointment of counsel (Doc. #73) is denied.

20090616

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