(PC) Fuentes v. Mule Creek State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FUENTES, SR., No. 2:23-cv-0386 KJN P 12 Plaintiff, 13 v. ORDER 14 MULE CREEK STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner, proceeding pro se and in forma pauperis. On March 9, 18 2023, plaintiff’s complaint was dismissed, and he was granted thirty days in which to file an 19 amended complaint. On April 21, 2023, plaintiff was granted thirty days to comply with the 20 order. On May 22, 2022, plaintiff filed a motion for extension of time to file an amended 21 complaint, along with a motion to appoint counsel. 22 Extension of Time 23 Good cause appearing, plaintiff is granted thirty days in which to file an amended 24 complaint that is complete and complies with the March 9, 2023 order. Plaintiff is cautioned that 25 failure to timely comply with these court orders will result in a recommendation that this action 26 be dismissed. 27 Motion for Counsel 28 Plaintiff requests that the court appoint counsel. 1 District courts lack authority to require counsel to represent indigent prisoners in section 2 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 3 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 4 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 5 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 6 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 7 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 8 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 9 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 10 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 11 legal education and limited law library access, do not establish exceptional circumstances that 12 warrant a request for voluntary assistance of counsel. 13 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 14 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 15 time. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff motion for extension of time (ECF No. 9) is granted; 18 2. Within thirty days from the date of this order, plaintiff shall complete the Notice of 19 Amendment and submit the following documents to the court: 20 a. The completed Notice of Amendment; and 21 b. An original of the Amended Complaint. 22 Plaintiff’s amended complaint shall comply with the March 9, 2023 order, the requirements of the 23 Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The 24 amended complaint must also bear the docket number assigned to this case and must be labeled 25 “Amended Complaint.” 26 Failure to file an amended complaint in accordance with this order will result in a 27 recommendation that this action be dismissed. 28 //// 1 3. Plaintiff's motion for appointment of counsel (ECF No. 9) is denied without prejudice. 2 || Dated: May 24, 2023 ; Foci) Aharon 4 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE /tuen0386.c012+ 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID FUENTES, SR., No. 2:23-cv-0386 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 MULE CREEK STATE PRISON, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint DATED: 19 20 ________________________________ Plaintiff 21 22 23 24 25 26 27 28