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Brownlee v. Clayton

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


March 5, 2010

TERRENCE BROWNLEE, PLAINTIFF,
v.
R. CLAYTON, 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 and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed December 24, 2009, plaintiff's case was dismissed but plaintiff was granted leave to file a (second) amended complaint. Plaintiff has filed a second amended complaint. In a concurrent filing, the court recommends dismissal of ten of the defendants named therein, but has found the second amended complaint appropriate for service upon some defendants. See below.

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 will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that: 1. Service is appropriate for the following defendants: Clayton, Kansier, Sahota, Stocker, Grannis.

2. The Clerk of the Court shall send plaintiff five (5) USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed January 8, 2010 (docket # 22).

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

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 1 above; and

d. Six (6) copies of the endorsed second amended complaint filed January 8, 2010 (docket # 22).

4. Plaintiff need not attempt service on defendants and need not request waiver of service. 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.

5. Plaintiff's January 8, 2010 (docket # 23) request for the appointment of counsel is denied.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

1 completed summons form

5 completed USM-285 forms

6 copies of the January 8, 2010 (Docket # 22)

Second Amended Complaint

DATED:

Plaintiff

20100305

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