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Edward R. Webb, Sr v. California Depart. of Corrections and Rehabilitation

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


June 28, 2012

EDWARD R. WEBB, SR., PLAINTIFF,
v.
CALIFORNIA DEPART. OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.*fn1 He requests leave to proceed in forma pauperis and that the court appoint counsel.

To proceed with a civil action a plaintiff must pay the $350 filing fee required by 28 U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit a properly completed affidavit and trust account statement required by 28 U.S.C. § 1915(a). Plaintiff has submitted his trust account statement, but has not filed an affidavit using the form application for this district.

Accordingly, plaintiff's in forma pauperis application is denied without prejudice to filing the application on the proper form.

Plaintiff also seeks appointment of counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 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). When determining whether "exceptional circumstances" exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The court finds there are no exceptional circumstances in this case.

Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's application to proceed in forma pauperis (Dckt. No. 3) is denied without prejudice;

2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner;

3. Plaintiff shall submit, within thirty days from the date of this order, a completed application to proceed in forma pauperis. Plaintiff's failure to comply with this order will result in this action being dismissed without prejudice.

4. Plaintiff's February 9, 2012, request for appointment of counsel (Dckt. No. 2) is denied.


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