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Townsend v. Sisto

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


September 21, 2009

WILLIAM TOWNSEND, JR., PLAINTIFF,
v.
D.K. SISTO, ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has not, however, filed a completed in forma pauperis affidavit or paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee in connection with Civ. No. S-09-2342 KJM P.

In addition, plaintiff has 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 in Civ. No. S-09-2342 will therefore be denied.

Finally, plaintiff sent a letter to the court in connection with a previous case, Townsend v. Sisto, Civ. No. 08-1177 RJB, after that case was closed. The court ordered that a new case be opened and the letter filed as the initiating document. It appears, however, that the claims plaintiff seeks to address are those included in the complaint filed in Civ. No. S-09-2342.

In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the appropriate filing fee; plaintiff's failure to comply with this order will result in the dismissal of Civ. No. S-09-2342;

2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner;

3. Plaintiff's request for the appointment of counsel (Civ. No. S-09-2342) (Docket No. 3) is denied; and

4. The Clerk of the Court is directed to assign a district judge to Civ. No. S-09-2412 KJM P.

IT IS HEREBY RECOMMENDED that case No. Civ. No. S-09-2412 be dismissed as duplicative.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090921

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