(PC) McLane v. Tollett ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON MCLANE, No. 2:23-cv-2740 DAD KJN P 12 Plaintiff, 13 v. ORDER 14 OFFICER JAKE TOLLETT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with this civil rights 18 action seeking relief pursuant to 42 U.S.C. § 1983. On January 2, 2024, the undersigned 19 recommended that plaintiff’s complaint be dismissed for failure to state a claim. Plaintiff now 20 seeks to amend and requests appointment of counsel. 21 As discussed below, plaintiff’s motion to amend and for appointment of counsel are 22 denied, and plaintiff is granted leave to file a motion to amend that is accompanied by a proposed 23 amended complaint. 24 Motion to Amend 25 On January 22, 2024, plaintiff filed a motion for leave to amend his complaint. However, 26 plaintiff’s motion is not signed by plaintiff. Parties proceeding without counsel are required to 27 sign all pleadings, motions, and other papers submitted to the court for filing. Fed. R. Civ. P. 28 11(a). 1 Further, plaintiff’s motion to amend was not accompanied by a proposed amended 2 complaint. As a prisoner, plaintiff’s pleadings are subject to evaluation by this court pursuant to 3 the in forma pauperis statute. See 28 U.S.C. § 1915A. If plaintiff chooses to renew his motion to 4 amend, he must submit a separate proposed amended complaint that identifies the parties and is 5 completed, dated, and signed by plaintiff. Plaintiff should use the court’s form complaint to 6 ensure that all required information is provided. Plaintiff may opt to append his proposed “Claim 7 I” (ECF No. 11 at 3) to the court’s form, provided plaintiff also completes and signs the form 8 complaint. 9 Because plaintiff failed to sign his motion and did not provide a proposed amended 10 complaint, the undersigned will hold the findings and recommendations in abeyance until plaintiff 11 renews the motion to amend and provides a proposed amended complaint. Plaintiff is cautioned 12 that if he fails to timely comply with this order, the findings and recommendations will be 13 forwarded to the district court for review and adoption. 14 Request for Counsel 15 Also, plaintiff requests that the court appoint counsel. District courts lack authority to 16 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 17 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 18 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 19 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 20 1990). When determining whether “exceptional circumstances” exist, the court must consider 21 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 22 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 23 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 24 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 25 common to most prisoners, such as lack of legal education and limited law library access, do not 26 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 27 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 28 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 1 |} time. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion for leave to amend (ECF No. 11) is denied without prejudice; 4 2. Within thirty days from the date of this order, plaintiff may file a signed motion to 5 || amend that is accompanied by an amended complaint under 42 U.S.C. § 1983, that is signed and 6 || completed, using the court’s form complaint; 7 3. The January 2, 2024 findings and recommendations (ECF No. 7) are held in abeyance 8 | pending receipt of plaintiff's motion to amend; failure to timely comply with this order will result 9 || in the findings and recommendations being forwarded to the district court for review and 10 | adoption; 11 4. The Clerk of the Court is directed to send plaintiff the form for filing a civil nghts 12 || complaint by a prisoner; and 13 5. Plaintiff's motion for the appointment of counsel (ECF No. 12) is denied without 14 | prejudice. 15 Dated: February 2, 2024 6 Aectl Aharon 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 /mcla2740.mta.3 1 19 20 21 22 23 24 25 26 27 28