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Marlin Penn v. U.S. Department of Justice

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


May 12, 2011

MARLIN PENN, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.

ORDER

Plaintiff, an inmate confined at High Desert State Prison, proceeds in this action pro se and in forma pauperis. On April 28, 2011, the undersigned issued an order denying plaintiff's request for leave to file a second amended complaint, Dckt. No. 18, without prejudice because it was unclear whether plaintiff was seeking to add certain new defendants to challenge the fairness of his trial and the validity of his conviction, which would be impermissible in this action, or whether he was challenging the proposed new defendants' alleged refusal to turn over requested information pursuant to the Freedom of Information Act ("FOIA"). Dckt. No. 24. The court also explained that since FOIA applies to only to "agencies," and does not apply to state governments, it appeared that plaintiff's desired amendment against those defendants would be futile.*fn1 Id. at 4.

The April 28, 2011 order also denied plaintiff's request for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), Dckt. No. 16, without prejudice because it could not "conclude that plaintiff's likelihood of success, the complexity of the issues, or the degree of plaintiff's ability to articulate his claims amount to exceptional circumstances justifying the appointment of counsel at this time." Dckt. No. 24 at 5.

Nonetheless, on May 5, 2011, plaintiff re-filed his motion for appointment of counsel and his motion to amend.*fn2 Dckt. Nos. 26, 27. For the reasons stated in the April 28, 2011 order, those motions are denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for the appointment of counsel, Dckt. No. 26, is denied without prejudice; and

2. Plaintiff's motion to amend, Dckt. No. 27, is denied without prejudice.


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