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Parmer v. Walker

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


April 14, 2010

DAVID EARL PARMER, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.

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

ORDER

At this time within this civil rights action, Findings and Recommendations are pending (filed on April 5, 2010), recommending dismissal of this case without prejudice (for plaintiff's failure to respond to the Order, filed on February 16, 2010, regarding the requisite documentation to pursue in forma pauperis status). Plaintiff had previously requested the appointment of counsel, inappositely asking, in this 42 U.S.C. § 1983 filing, for counsel to be appointed for his petition for writ of habeas corpus.

To the extent that the request can be construed as seeking appointment of counsel for the instant civil rights complaint, 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, plaintiff has failed to make the showing necessary to proceed in forma pauperis. 28 U.S.C. § 1915(a). Nor has he paid the required filing fee. 28 U.S.C. § 1914(a). Therefore, the court has not yet determined whether plaintiff's case sets forth the required exceptional circumstances. Plaintiff's motion for the appointment of counsel will therefore be denied as premature.

Accordingly, IT IS HEREBY ORDERED that plaintiff's January 26, 2010 motion for the appointment of counsel (Docket No. 7) is denied as premature.

20100414

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