Opinion
No. CIV S-06-2125 LKK KJM P.
April 5, 2007
ORDER
Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed a request to proceed in forma pauperis. Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action in federal district court. See 28 U.S.C. § 1914(a). Plaintiff has already paid $150.00 of the filing fee. The court may authorize the commencement of an action "without prepayment of fees and costs or security therefor, by a person who submits an affidavit . . . that [he] is unable to pay such fee or give security therefor." 28 U.S.C. § 1915(a). The amount of money in plaintiff's inmate trust account shows that plaintiff is able to pay the remainder filing fee and costs. Thus, plaintiff has made an inadequate showing of indigency. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993). Plaintiff will therefore be granted twenty days in which to submit the appropriate filing fee to the Clerk of the Court. Plaintiff is cautioned that failure to pay the fee will result in a recommendation that the instant action be dismissed without prejudice.
Also, plaintiff has requested the 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 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). In the present case, the court does not find the required exceptional circumstances. Plaintiff's motion for the appointment of counsel will therefore be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis is denied;
2. Within twenty days from the date of this order, plaintiff shall submit $200.00 to the Clerk of the Court for the remainder of the filing fee for this action; and
3. Plaintiff's January 16, 2007 motion for the appointment of counsel is denied.