United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. In response to this
court's order, plaintiff has submitted a completed
USM-285 form for defendant Robenson. ECF No. 48 at 2. He has
also filed a motion for appointment of counsel. ECF No. 51.
Service on Defendant Robenson
order filed August 27, 2019, plaintiff was ordered to provide
additional information about defendant Robenson so that he
may be served. ECF No. 46 at 1. Plaintiff was explicitly
advised that service of process had been unsuccessful
“because no individual with that name and working at
the prison at the time specified in the complaint could be
identified.” Id. Plaintiff has now submitted a
USM-285 form for defendant Robenson. ECF No. 48 at 2.
However, the only new information provided is that Robenson
is an “African American C/O.” Id. This
defendant could not be identified by the name and approximate
dates and location of employment already provided;
information about the defendant's race is not sufficient
new information to identify him for service. Plaintiff must
provide additional information such as an alternative name,
badge number, address, or any other information which would
help to definitively identify the defendant. Plaintiff shall
promptly seek such information through discovery, the
California Public Records Act, California Government Code
§ 6250, et seq., or other means available to plaintiff.
If access to the required information is denied or
unreasonably delayed, plaintiff may seek judicial
intervention. The court will not attempt further service on
defendant Robenson until plaintiff provides sufficient
additional information with which to identify him. Failure to
provide such information will result in a recommendation that
defendant Robenson be dismissed from this action.
Motion for Appointment of Counsel
has also submitted another request for the appointment of
counsel. ECF No. 51. The 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. Plaintiff requests appointment of
counsel on the ground that he has autism. ECF No. 51. This is
his fourth such request. See ECF Nos. 25, 33, 39.
has been previously advised that the mere claim that he has
autism is not sufficient to warrant appointment of counsel,
and that he must “specify how his conditions prevent
him from proceeding without assistance and provide medical
documentation supporting his claimed impairments.” ECF
No. 26 at 2; ECF No. 35 at 2; ECF No. 40 at 2. In support of
his motion, plaintiff has provided a dermatology evaluation
that indicates that he has autism spectrum disorder and ADHD.
ECF No. 51 at 3. However, neither the medical report nor the
motion specifies how these impairments affect his ability to
proceed in this case. Instead plaintiff has requested the
court subpoena his treating clinician to testify on his
behalf or that the court alternatively “google
Autism/Asperger's” for guidance. Id. at 1.
The court will not order prison mental health professionals
to testify on plaintiff's behalf. Also, general
information about autism does not tell the court how
plaintiff himself is affected by the condition. Plaintiff
needs to summarize in his own words how his conditions affect
his ability to proceed in this case and provide copies of
medical records that support such claims, not just records
that show he is autistic. Because plaintiff has not shown how
his conditions prevent him from proceeding in this case
without assistance, the motion for appointment of counsel
will be denied.
IT IS HEREBY ORDERED that:
Within sixty days from the date of service of this order,
plaintiff shall complete and submit the attached Notice of
Submission of Documents to the court with the following
a. One completed USM-285 form for defendant Robenson that
includes new information with which to identify defendant
Robenson; b. One completed summons form.
plaintiff cannot provide new information with which to
identify defendant Robenson, he must show good cause why he
is unable to do so.
Plaintiff's request for appointment of counsel (ECF No.
51) is DENIED without prejudice.
Defendants' request for judicial notice (ECF No. 53) is