(PC) Williams v. Fannon ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENTRY WILLIAMS, No. 2:19-cv-0486 MCE DB P 12 Plaintiff, 13 v. ORDER 14 J. FANNON, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 18 42 U.S.C. § 1983. Plaintiff alleges excessive force in violation of his Eighth Amendment rights. 19 Before the court are plaintiff’s motion for the appointment of counsel, motion for defendant to 20 file an answer, and request for the status of service of the complaint on defendant Fannon. For 21 the reasons set forth below, the court will deny both motions and provides plaintiff with an 22 explanation of the status of service of the complaint. 23 BACKGROUND 24 In an order filed June 12, 2019, this court found plaintiff stated a potentially cognizable 25 claim against defendant Fannon for excessive force. Plaintiff then submitted service documents 26 for defendant Fannon and on June 28, 2019, this court ordered the U.S. Marshal to first seek a 27 waiver of service from defendant Fannon and, if the waiver was not returned, to attempt personal 28 service on Fannon. (ECF No. 13.) To date, defendant Fannon has not appeared in this case. 1 This court has inquired about the status of service on defendant Fannon. Apparently, due 2 to administrative errors, the U.S. Marshal did not send the waiver of service to Fannon until 3 October 10, 2019. Recently, the California Department of Corrections and Rehabilitation 4 informed the Marshal that Fannon has a new address. On December 16, a waiver of service was 5 sent to Fannon at that new address. As set out in the court’s June 28 order, if Fannon does not 6 return that wavier form within 60 days, the Marshal will attempt personal service on Fannon. 7 MOTION FOR DEFENDANT TO FILE AN ANSWER 8 As set out above, it does not appear that defendant Fannon has been provided a copy of 9 the complaint. Further, it does not appear that Fannon bears any responsibility for the delay in 10 obtaining the complaint. Because Fannon has not yet appeared in this action, this court has no 11 authority to order him to answer the complaint. 12 MOTION FOR THE APPOINTMENT OF COUNSEL 13 Plaintiff seeks the appointment of counsel. He states that he “has no skills in litigation” 14 and has required the help of others to litigate this case. (ECF No. 21.) 15 The United States Supreme Court has ruled that district courts lack authority to require 16 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 17 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 18 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 19 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 The test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of 21 success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the 22 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 23 Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to 24 most prisoners, such as lack of legal education and limited law library access, do not establish 25 exceptional circumstances that would warrant a request for voluntary assistance of counsel. In 26 the present case, the court does not find the required exceptional circumstances. 27 //// 28 //// 1 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff's motion for defendant to answer the complaint (ECF No. 22) is denied; and 3 2. Plaintiffs motion for the appointment of counsel (ECF No. 21) is denied. 4 | Dated: December 27, 2019 7 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 DB prisoner-civil rights/will0486.31 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28