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Milliken v. Lightfield

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


October 18, 2010

JAMES M. MILLIKEN, PLAINTIFF,
v.
MR. LIGHTFIELD, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On October 8, 2010, plaintiff filed a motion for leave to amend his complaint together with a proposed first amended complaint. Plaintiff is entitled to amend his complaint once as of right prior to service of a responsive pleading. See Fed. R. Civ. P. 15(a). On September 22, 2010, signed waivers of service were returned from defendants Lewis, Lightfield and Taylor. Defendants have not yet filed a responsive pleading.*fn1

Accordingly, plaintiff is entitled to amend his complaint and his motion will therefore be granted.

The first amended complaint states a cognizable claim for relief against defendants Lewis, Lightfield and Taylor pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Accordingly, said defendants will be directed to respond to the first amended complaint.

Plaintiff has also filed a second motion for the appointment of counsel.*fn2 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.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's October 8, 2010 motion to amend is granted.

2. Plaintiff's first amended complaint states a cognizable claim for relief against defendants Lightfield, Lewis, Taylor.

3. The Clerk of the Court is directed to send a copy of plaintiff's first amended complaint and a copy of this order to Deputy Attorney General Richard B. Price, Office of the Attorney General, P.O. Box 944255, Sacramento, CA 94244-2550.

4. Within twenty days from the date of this order defendants Lightfield, Lewis, and Taylor shall file and serve a response to plaintiff's first amended complaint.

5. Plaintiff's October 8, 2010 motion for appointment of counsel is denied.


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