(PC) Pavao v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ENRICO PAVAO, No. 2:20-cv-1693 CKD P 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendant. 16 17 Plaintiff is a former county inmate proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983. On January 21, 2021, the court screened 19 plaintiff’s complaint and gave him the choice of proceeding immediately on the Eighth 20 Amendment claim against defendants or amending his complaint to attempt to cure the 21 deficiencies with respect to the remaining claims. Plaintiff filed a notice of election indicating his 22 desire to file an amended complaint. The court will grant plaintiff thirty days to file an amended 23 complaint. 24 In light of plaintiff’s decision to amend his complaint, the court will deny his ex parte 25 application for limited discovery as premature. A discovery and scheduling order will issue only 26 if the court finds that service of plaintiff’s amended complaint is appropriate. See 28 U.S.C. § 27 1915A(a). 28 Plaintiff has also requested that the court appoint counsel. District courts lack authority to 1 | require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 2 | Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 3 | attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 4 | 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 5 | 1990). When determining whether “exceptional circumstances” exist, the court must consider 6 | plaintiffs likelihood of success on the merits as well as the ability of the plaintiff to articulate his 7 | claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 8 | 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 9 | The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 10 | common to most prisoners, such as lack of legal education and limited law library access, do not 11 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 12 Having considered the factors under Palmer, the court finds that plaintiff has failed to 13 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 14 | counsel at this time. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 | Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 19 | assigned this case and must be labeled “Amended Complaint”; failure to file an amended 20 | complaint in accordance with this order will result in a recommendation that this action be 21 | dismissed. 22 2. Plaintiffs ex parte application for limited discovery (ECF No. 3) is denied as 23 || premature. 24 3. Plaintiff's request for the appointment of counsel (ECF No. 20) is denied without 25 || prejudice. 26 | Dated: February 25, 2021 fh Ts / baa: CAM. KK. eu “ 27 CAROLYN K. DELANEY : 28 | 12/paval693.36+motion.docx UNITED STATES MAGISTRATE JUDGE