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Garcia v. Warden

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


August 26, 2010

DANNY GARCIA, PLAINTIFF,
v.
WARDEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. On July 21, 2010, plaintiff was granted twenty-eight days to file an amended complaint.

On August 24, 2010, plaintiff filed a motion for 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. Therefore, plaintiff's motion for the appointment of counsel is denied.

Twenty-eight days passed from the July 21, 2010 order and plaintiff did not file an amended complaint. Because plaintiff filed the request for appointment of counsel, he apparently is still interested in litigating this action. Plaintiff is granted twenty-eight days from the date of this order to file an amended complaint.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's August 24, 2010 motion for the appointment of counsel (Dkt. No. 19) is denied;

2. Plaintiff is granted twenty-eight days from the date of this order in which to file an amended complaint; failure to file an amended complaint within that time will result in dismissal of this action.

20100826

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