Opinion
Case No. C06-5030RJB.
May 10, 2006
ORDER STRIKING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, GRANTING LEAVE TO AMEND AND DENYING REQUEST FOR COUNSEL
This 42 U.S.C. § 1983 action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1) and Local MJR 3 and 4. The plaintiff has been granted leave to proceed in forma pauperis. (Dkt. # 7). Before the court is plaintiff's motion for preliminary injunction. (Dkt. # 10).
Plaintiff advises the court that he is now in agreement with defendants that there is presently no need for an injunction, as his prescribed medication has been approved for four months. Plaintiff seeks leave to amend his original complaint to "cure all deficiencies," and also asks that the court appoint counsel on his behalf. The court will first address plaintiff's request for counsel.
1. Request for Counsel
There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the court, under 28 U.S.C. § 1915(d), can request counsel to represent a party proceeding in forma pauperis, the court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional circumstances requires an evaluation of both the 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. Wilborn, 789 F.2d at 1331.
Plaintiff has demonstrated an adequate ability to articulate his claims pro se. Plaintiff has presented no evidence of exceptional circumstances warranting the appointment of counsel. Plaintiff must be able to show how the legal issues involved are complex and also must make a showing that it is likely he will succeed on the merits. He has not done so. Accordingly, plaintiff's motion to appoint counsel (Dkt. # 15) is DENIED.
2. Amended Complaint
Plaintiff asks that he be allowed to amend his complaint to "cure all deficiencies." That motion (Dkt. # 15) is GRANTED, and plaintiff shall have until May 30, 2006 to file an amended complaint. Plaintiff is advised that the court will review the amended filing to determine whether it properly states a claim before this case is allowed to proceed.
3. Preliminary Injunction
Plaintiff's motion for preliminary injunction (Dkt. # 10) is STRICKEN from the court's docket.