(PC) Hudson v. Cargill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TORIANO GERMAIN HUDSON, Sr., No. 2:20-cv-0481 KJN P 12 Plaintiff, 13 v. ORDER 14 ROBERT NEUSCHMID, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. On April 29, 2020, plaintiff inquired why he must pay the court’s filing fee because he is 19 indigent, and requests an extension of time to file his amended complaint because he remains 20 confined to his cell because of the COVID-19 pandemic and his vulnerability due to his health 21 conditions. Plaintiff requests that the court appoint counsel to assist plaintiff in meeting the 22 court’s deadline. 23 First, plaintiff is advised that district courts lack authority to require counsel to represent 24 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 25 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent 26 such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 27 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining 28 whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of 1 success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of 2 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) 3 (district court did not abuse discretion in declining to appoint counsel). The burden of 4 demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most 5 prisoners, such as lack of legal education and limited law library access, do not establish 6 exceptional circumstances that warrant a request for voluntary assistance of counsel. 7 Having considered the factors under Palmer, the court finds that plaintiff has failed to 8 meet his burden of demonstrating exceptional circumstances warranting the appointment of 9 counsel at this time. 10 Second, the court will grant plaintiff additional time to file an amended complaint 11 pursuant to the court’s order of March 11, 2020. 12 Finally, the court understands plaintiff’s frustration that he is required to pay the court’s 13 filing fee despite his indigent status. However, as explained in the initial screening order, under 14 28 U.S.C. §§ 1914(a), 1915(b), plaintiff is required to pay the filing fee despite his indigency. 15 Congress implemented the Prison Litigation Reform Act (“PLRA”) which imposed new filing 16 fees and procedures for inmates seeking leave to proceed in forma pauperis. 28 U.S.C. § 1915, et 17 seq. “The new fee provisions of the PLRA were designed to deter frivolous prisoner litigation in 18 the courts ‘by making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect 19 created by liability for filing fees.’” Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 20 1997), as revised (July 23, 1997), quoting Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir. 21 1996). However, inmates are permitted to pay filing fees by installment, based on the balance in 22 the inmate’s prison trust account, whereas nonprisoners must pay filing fees in full. In addition, 23 prisoners granted leave to proceed in forma pauperis are not required to pay the court’s additional 24 $50.00 administrative fee. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s motion for the appointment of counsel (ECF No. 14) is denied without 27 prejudice; 28 2. Plaintiff’s motion for an extension of time (ECF No. 14) is granted; and MASS 2 OUUETO RUINS IN RAMU tw PIC Ie AY VI 1 3. Plaintiff is granted up to and including June 29, 2020, in which to file an amended 2 | complaint. 3 | Dated: May 5, 2020 ‘ Frese Arn 5 KENDALL J. NE /huds0481.31436sec UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28