(PC) Foust v. Ankintola ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:23-cv-1208 AC P 12 Plaintiff, ORDER 13 v. 14 OMONIYI TEMITOPE ANKINTOLA, et al., 15 Defendants. 16 17 18 By order filed June 27, 2023, plaintiff was directed to file a completed in forma pauperis 19 application or pay the filing fee and to submit a signed complaint. ECF No. 3. He was cautioned 20 that failure to comply with either directive would result in a recommendation that this action be 21 dismissed. Id. at 2. After the time for compliance passed, the court noted that plaintiff had filed 22 only an unsigned first amended complaint; plaintiff was given another opportunity to file a signed 23 complaint and to submit an application to proceed in forma pauperis or pay the fee. ECF No. 6. 24 He was cautioned that failure to comply with either part of the order would result in a 25 recommendation that this action be dismissed without further warning. Id. The time to comply 26 with that order has now passed, and though plaintiff has filed two motions for leave to proceed in 27 forma pauperis and a motion for appointment of counsel (ECF Nos. 7-10), he has once again 28 failed to file a signed complaint. 1 It may be that plaintiff did not file a signed complaint because he was waiting for a ruling 2 on his motion for appointment of counsel. Accordingly, plaintiff will be provided one final 3 opportunity to comply with the court’s order. Plaintiff is advised that he is required to file a 4 signed complaint even if he files another motion for appointment of counsel. Failure to 5 comply will result in a recommendation that this action be dismissed without further 6 warning. 7 With respect to plaintiff’s motion for appointment of counsel, the United States Supreme 8 Court has ruled that district courts lack authority to require counsel to represent indigent prisoners 9 in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 10 exceptional circumstances, the district court may request the voluntary assistance of counsel 11 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 12 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 13 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 14 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 15 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 16 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 17 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 18 most prisoners, such as lack of legal education and limited law library access, do not establish 19 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 20 Plaintiff requests counsel on the grounds that his is legally blind, requires assistance with 21 reading and writing, has mobility impairments, and uses slow and simple communication. ECF 22 No. 8 at 1. The request will be denied because the mere claim that plaintiff suffers from these 23 conditions is not enough to establish exceptional circumstances warranting appointment of 24 counsel. If plaintiff chooses to file another motion for appointment of counsel, he should specify 25 how his conditions prevent him from proceeding without assistance and provide medical 26 documentation supporting his claimed impairments. 27 //// 28 //// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for appointment of counsel (ECF No. 8) is DENIED; 3 2. Within twenty-one days of the filing of this order, plaintiff shall submit a signed 4 || complaint; and 5 3. Failure to comply with this order will result in a recommendation that this action be 6 || dismissed without further warning. 7 || DATED: September 20, 2023 ~ g AMhon—Chnne ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28