Opinion
No. CIV S-06-1301 MCE KJM P.
May 24, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed November 15, 2006, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
The amended complaint states cognizable First and Eighth Amendment claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against defendant Hall. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on these claims. Therefore, the court will order service of process on defendant Hall. With respect to the other defendants identified in plaintiff's amended complaint, the amended complaint fails to state a claim upon which relief can be granted. Therefore, the court will not order service of process as to the other defendants.
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 request for the appointment of counsel will therefore be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for defendant Hall.
2. The Clerk of the Court shall send plaintiff a USM-285 form, a summons, an instruction sheet and a copy of the amended complaint filed March 16, 2007.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form; and
d. Two copies of the endorsed amended complaint filed March 16, 2007.
4. Plaintiff need not attempt service on defendant Hall and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant Hall pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. Plaintiff's March 16, 2007 request for the appointment of counsel is denied.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed _________________________:
_____ completed summons form _____ completed USM-285 form _____ copies of the ______________________________ Amended Complaint DATED: _________________________________ Plaintiff