(PC) Anderson v. Vangerwen ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RYAN DAVID ANDERSON, No. 2:20-cv-00246 KJM DB P 11 Plaintiff, 12 v. ORDER 13 VAN GERWEN, et al., 14 Defendants. 15 16 Plaintiff is an inmate proceeding pro se with a civil rights action. On December 23, 2022, 17 the court directed plaintiff to file notice of whether he wished to proceed on his complaint as 18 screened or be given leave to file an amended complaint. (ECF No. 22.) Plaintiff has filed notice 19 that he wishes to file an amended complaint. (ECF No. 24.) Accordingly, plaintiff will be 20 granted leave to file an amended complaint. 21 Plaintiff also notes that he wishes to file a separate action as to claims unrelated to this 22 action. Plaintiff is permitted to file separate actions involving unrelated claims and defendants at 23 any time and at his own discretion. 24 Finally, plaintiff has requested appointment of counsel. (ECF No. 23.) The United States 25 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 26 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 27 certain exceptional circumstances, the district court may request the voluntary assistance of 28 //// 1 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 2 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 4 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 5 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 6 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 7 common to most prisoners, such as lack of legal education and limited law library access, do not 8 establish exceptional circumstances that would warrant a request for voluntary assistance of 9 counsel. 10 In the present case, the court does not find the required exceptional circumstances. 11 Plaintiff’s claims do not appear to involve particularly complex legal issues and he has thus far 12 succeeded in articulating some cognizable claims. Additionally, the court cannot yet determine 13 the likelihood of plaintiff’s success on the merits as defendant has not yet been ordered to file any 14 responsive pleadings. Plaintiff’s request relies on difficulties with accessing litigation materials, 15 utilizing the law library, and lack of legal education. Thus, the court will not find that exceptional 16 circumstances exist and will deny plaintiff’s request for counsel. 17 //// 18 //// 19 //// 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. In accordance with plaintiff's notice of how to proceed, plaintiff's Third Amended 3 Complaint (ECF No. 21) is dismissed with leave to amend. 4 2. Plaintiff is granted sixty (60) days from the date of service of this order to file an amended 5 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 6 of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the 7 docket number assigned this case and must be labeled “Fourth Amended Complaint;” 8 failure to file an amended complaint in accordance with this order may result in a 9 recommendation that this action be dismissed. 10 3. Plaintiff's motion for the appointment of counsel (ECF No. 23) is denied without 11 prejudice to its renewal at a later stage of these proceedings. 12 || Dated: March 14, 2023 14 15 B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 DB:14 20 | DB/DB Prisoner Inbox/Civil Rights/R/ande0246.31 21 22 23 24 25 26 27 28