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Darren Henderson v. T. Felker

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


August 27, 2012

DARREN HENDERSON, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are plaintiff's objections to defendants' August 1, 2012 Rand notice and request for supplemental briefing, and plaintiff's request for appointment of counsel. See Dckt. No. 136. As stated below, plaintiffs' objections are disregarded as moot and plaintiff's request for appointment of counsel is denied.

Defendants previously moved for summary judgment and the motion was fully briefed and submitted for decision. Before the court ruled on the motion, however, the Court of Appeals for the Ninth Circuit issued an opinion in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), which requires that pro se prisoner plaintiffs be provided with notice of the requirements for opposing a motion for summary judgment at the same time that such a motion is filed and served. See id.

("The only satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand . . . is to provide such notice at the time that the relevant motions are filed." (emphasis added)); Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state that the court has required that it be given and that it be set forth in a separate document that is served with the moving papers). In an attempt to comply with Woods, defendants filed and served a Rand notice on August 1, 2012. Dckt. No. 131. They also requested that plaintiff be granted leave to file a supplemental brief. Id.

On August 9, 2012, the court determined that defendants' August 1, 2012 Rand notice was not sufficient to comply with Woods. Dckt. No. 132. The court also denied defendants' motion for summary judgment without prejudice and permitted defendants to re-serve their motion, along with the Rand notice to plaintiff, in accordance with Woods. Id. The court also granted plaintiff leave to file an amended opposition, but informed plaintiff that it would consider his existing opposition if he did not timely file an amended opposition. Id. Plaintiff's objections to defendants' August 1, 2012 filing, are therefore disregarded as moot.*fn1

Plaintiff also requests 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). Having considered those factors, the court finds there are no exceptional circumstances in this case.

Accordingly, IT IS HEREBY ORDERED that plaintiff's request for appointment of counsel, Dckt. No.136, is denied.


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