United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. Plaintiff
consented to proceed before the undersigned for all purposes.
See 28 U.S.C. § 636(c). On May 23, 2016,
plaintiff filed a civil rights complaint claiming that
plaintiff was denied the right to a fair trial due to the
criminal charges levied by defendant Wesp. Plaintiff alleges
that he was charged with a lesser offense, and that had he
been charged with a greater offense, he would have suffered a
lesser penalty than he sustained. (ECF No. 1.)
6, 2016, plaintiff was advised that he must submit a
completed affidavit in support of his request to proceed in
forma pauperis. On June 20, 2016, plaintiff filed a request
for a sixty day extension of time in which to submit the
documents because he was transferred and lost his property.
On June 21, 2016, plaintiff filed a motion to amend the
complaint to add defendants and new claims. The next day, he
filed motions to appoint counsel and for discovery.
plaintiff's motions filed on June 21 and 22 are
premature. This action cannot proceed until plaintiff either
pays the $400.00 filing fee or submits a completed in forma
pauperis application that bears the certification filled out
by an authorized prison official and a certified prison trust
account statement for the last six month period. Plaintiff
provided a copy of an inmate statement report on June 22,
2016. (ECF No. 10 at 3.) However, the statement was not
certified by prison officials. 28 U.S.C. § 1915(a)(2).
Plaintiff is granted an extension of time to submit these
documents required by the June 6, 2016 order. The Clerk of
the Court is directed to send plaintiff an application to
proceed in forma pauperis by prisoners.
plaintiff may amend his complaint once as a matter of right.
Fed.R.Civ.P. 15. However, plaintiff must submit an amended
complaint that is complete in itself. Because plaintiff was
not required to file a motion to amend in order to amend the
complaint, and he did not submit an amended complaint that
contained all of his claims against all of the named
defendants, his motion to amend is denied without prejudice.
plaintiff's motion for appointment of counsel is
premature. 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 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
plaintiff's 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)
(district court did not abuse discretion in declining to
appoint counsel). The burden of demonstrating exceptional
circumstances is on the plaintiff. Id. Circumstances
common to most prisoners, such as lack of legal education and
limited law library access, do not establish exceptional
circumstances that warrant a request for voluntary assistance
stage of the proceedings, the court cannot determine whether
plaintiff is likely to succeed on the merits of his claims,
particularly where he intends to amend his pleading to name
additional defendants and add new claims. Thus,
plaintiff's motion for appointment of counsel is denied
similarly, plaintiff's motion for discovery is premature,
and is denied without prejudice. Until the court finds that
plaintiff has a cognizable civil rights complaint on file,
and defendants have appeared in the action, any request for
discovery is premature.
plaintiff is cautioned that a state prosecuting attorney
enjoys absolute immunity from liability under 42 U.S.C.
§ 1983 for his conduct in "pursuing a criminal
prosecution" insofar as he acts within his role as an
"advocate for the State" and his actions are
"intimately associated with the judicial phase of the
criminal process." Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976). Thus, to the extent plaintiff is
attempting to seek damages for defendant Wesp's actions
in prosecuting plaintiff, including deciding what criminal
charges to file against plaintiff, such efforts are
unavailing. Defendant Wesp enjoys absolute immunity for his
actions in prosecuting plaintiff, including determining what
criminal charges to levy against plaintiff.
to the extent that plaintiff claims that defendant Wesp
engaged in prosecutorial misconduct during the course of the
underlying criminal action, or denied plaintiff a fair trial,
plaintiff must seek relief through a petition for writ of
habeas corpus under 28 U.S.C. § 2254. However, plaintiff
must exhaust his state court remedies as to each
plaintiff is cautioned that failure to provide the documents
required by the June 6, 2016 order will result in the
dismissal of this action.
IT IS HEREBY ORDERED that:
Plaintiffs motion for extension of time (ECF No. 5) is
granted; 2. Within sixty days from the date of this order,
plaintiff shall file both documents required by the June 6,
2016 order; 3. Plaintiffs motions to amend (ECF No. 8), for
appointment of counsel (ECF No. 10), and for discovery (ECF
No. 11), are denied without prejudice; and 4. The Clerk of
the Court is directed to send plaintiff the ...