(PC) Rabb v. Pickett ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMED D. RABB, No. 2:21-cv-0689 CKD P 12 Plaintiff, 13 v. ORDER 14 JASON PICKETT, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. Plaintiff has not, however, filed his application for leave to proceed in forma 20 pauperis on the form used by this district. Accordingly, plaintiff’s application will be dismissed 21 and plaintiff will be provided the opportunity to submit the application on the appropriate form. 22 Plaintiff is cautioned that he must also provide a certified copy of his prison trust account 23 statement for the six-month period immediately preceding the filing of his complaint. 24 In addition, plaintiff has requested the appointment of counsel. District courts lack 25 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 26 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 27 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 28 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 1 | (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 2 | consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to 3 | articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 4 | Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 5 | appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 6 | Circumstances common to most prisoners, such as lack of legal education and limited law library 7 | access, do not establish exceptional circumstances that warrant a request for voluntary assistance 8 | of counsel. 9 Having considered the factors under Palmer, the court finds that plaintiff has failed to 10 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 11 || counsel at this time. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiffs application to proceed in forma pauperis (ECF No. 3) is dismissed without 14 | prejudice; 15 2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In 16 | Forma Pauperis By a Prisoner; 17 3. Plaintiff shall submit, within thirty days from the date of this order, a completed 18 | application to proceed in forma pauperis. Plaintiff's failure to comply with this order will result 19 | in a recommendation that this action be dismissed without prejudice; and 20 4. Plaintiffs motion for the appointment of counsel (ECF No. 4) is denied without 21 | prejudice. 22 | Dated: April 20, 2021 Ci dp. f | fe 28 CAROLYN K DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 12/rabb0689.3d+31.docx 28