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Tyrone Rogers v. G.J. Giurbino; Domingo Uribe

June 7, 2011

TYRONE ROGERS,
PLAINTIFF,
v.
G.J. GIURBINO; DOMINGO URIBE, JR.;
KUZIL-RUAN; B. NARVIS; DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez, Chief Judge

CDCR #V-35389,

ORDER

(1) DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL; and (2) DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)

I.

PROCEDURAL HISTORY

On March 21, 2011, Tyrone Rogers, a state prisoner currently incarcerated at Centinela State Prison located in Imperial, California, and proceeding pro se, submitted a civil action pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), along with a Request for Appointment of Counsel. On April 20, 2011, the Court granted Plaintiff's Motion to Proceed IFP, denied his Request for

Appointment of Counsel and dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). See Apr. 20, 2011 Order at 10-11. The Court granted Plaintiff leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. On May 31, 2011, Plaintiff filed his First Amended Complaint ("FAC"), along with a second Motion to Appoint Counsel.

II.

REQUEST FOR APPOINTMENT OF COUNSEL

Once again, Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

The Court deniesPlaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

III.

SUA SPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

As the Court stated in its previous Order, notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. ยง 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or ...


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