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Chubbuck v. CDC: High Desert State Prison

United States District Court, E.D. California
May 6, 2008
No. CIV S-04-1748 MCE DAD P (E.D. Cal. May. 6, 2008)

Opinion

No. CIV S-04-1748 MCE DAD P.

May 6, 2008


ORDER


Plaintiff has requested a six-month extension of time to file a third amended complaint pursuant to the court's order of March 14, 2008. Good cause appearing, plaintiff's request will be granted in part. Plaintiff will be granted thirty days from the date of this order in which to file a third amended complaint.

Plaintiff is reminded that Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S. Ct. 1955, 1964 (2007) (quotingConley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff is also advised that he has an obligation to diligently prosecute this case. If plaintiff no longer wishes to proceed with this matter at this time, he should file a request to dismiss this action without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.

Plaintiff has also requested appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. In the present case, the court does not find the required exceptional circumstances.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's April 28, 2008 request for an extension of time is granted in part;

2. Plaintiff is granted thirty days from the date of this order in which to file a third amended complaint; and

3. Plaintiff's April 28, 2008 request for appointment of counsel is denied.


Summaries of

Chubbuck v. CDC: High Desert State Prison

United States District Court, E.D. California
May 6, 2008
No. CIV S-04-1748 MCE DAD P (E.D. Cal. May. 6, 2008)
Case details for

Chubbuck v. CDC: High Desert State Prison

Case Details

Full title:DAVID T. CHUBBUCK, Plaintiff, v. THE CDC: HIGH DESERT STATE PRISON, et…

Court:United States District Court, E.D. California

Date published: May 6, 2008

Citations

No. CIV S-04-1748 MCE DAD P (E.D. Cal. May. 6, 2008)