United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, seeks relief pursuant to
42 U.S.C. § 1983 and has requested leave to proceed in
forma pauperis (ECF No. 2) and appointment of counsel (ECF
No. 7). Plaintiff has also filed a motion to compel (ECF No.
8), two motions for modification of sentence (ECF Nos. 10,
16), and an opposition to a motion for summary judgment (ECF
No. 13). This proceeding was referred to this court by Local
Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF No. 2. Accordingly, the
request to proceed in forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff’s trust account and forward it to
the Clerk of the Court. Thereafter, plaintiff will be
obligated for monthly payments of twenty percent of the
preceding month’s income credited to plaintiff’s
prison trust account. These payments will be forwarded by the
appropriate agency to the Clerk of the Court each time the
amount in plaintiff’s account exceeds $10.00, until the
filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Request for Appointment of Counsel
United States Supreme Court has ruled that district courts
lack authority to require counsel to represent indigent
prisoners in § 1983 cases. Mallard v. United States
Dist. Court, 490 U.S. 296, 298 (1989). In certain
exceptional circumstances, the district court may request the
voluntary assistance of counsel pursuant to 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).
determining whether ‘exceptional circumstances’
exist, a 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)
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)). 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 would warrant a request for voluntary
assistance of counsel.
requests counsel on the grounds that he his incarceration
inhibits his ability to litigate this case, he has limited
access to the law library, he has limited knowledge of the
law, and an attorney would be better able to present his
case. ECF No. 7 at 2. These circumstances are common to most
prisoners and are therefore not exceptional. Moreover, the
complaint is being dismissed with leave to amend, so at this
time the court is unable to determine plaintiff’s
likelihood of success on the merits or whether plaintiff has
a cognizable claim. For these reasons, plaintiff’s
request for counsel will be denied at this time.
has filed a motion to compel (ECF No. 8), two motions to
modify his sentence (ECF Nos. 10, 16), and a response to a
motion for summary judgment (ECF No. 13).
in this case have not been served and the court has not set a
schedule for discovery. Plaintiff’s motion to compel is
therefore premature and will be denied.
two motions to modify his sentence will be stricken from the
record and returned to plaintiff. The instant action is a
civil rights claim for deliberate indifference to
plaintiff’s serious medical needs. A modified criminal
sentence is not an available remedy in a civil rights action.
If plaintiff wants to pursue habeas relief, he must do it in
a separate action. Additionally, although both motions are
labeled with the case number for this action, they are
captioned for the Sacramento County Superior Court,
indicating that the motions may have been sent to this court
plaintiff’s opposition to defendants’ motion for
summary judgment will also be stricken from the record and
returned to plaintiff. As noted above, no defendants have
been served in this case, meaning no defendants have filed a
motion for summary judgment in ...