Opinion
No. CIV S-10-1280 GEB DAD P.
July 29, 2010
ORDER
Plaintiff, a state prisoner proceeding pro se, is seeking relief pursuant to 42 U.S.C. § 1983. On June 2, 2010, the undersigned issued findings and recommendations, recommending that this action be dismissed as duplicative of plaintiff's action in Case No. Civ. S-10-1181 JFM. Pending before the court are plaintiff's objections to those findings and recommendations.
PLAINTIFF'S OBJECTIONS
In his objections, plaintiff concedes that his complaint in this action contains the same claims as his complaint filed in Case No. Civ. S-10-1181 JFM. (Obj. at 2.) However, plaintiff explains that in this case he has filed complete documents, whereas in his other case he has not. (Id. at 1-2.) Accordingly, plaintiff requests that he be allowed to proceed with this action, while voluntarily dismissing the earlier filed action. (Id. at 2.)
Plaintiff apparently is referring to the approximately ninety pages of documents attached to his complaint in this action made up of CDCR incident reports, rukles violation reports, prison administrative appeals and the responses thereto.
In the interest of justice, the undersigned will honor plaintiff's request. The court will vacate its June 2, 2010 findings and recommendations, and plaintiff is advised that if he wishes to proceed in the manner he has suggested he must file a request for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a) in Case No. Civ. S-10-1181 JFM. Below, the court will evaluate plaintiff's in forma pauperis application and motion for the appointment of counsel.
The court notes that plaintiff's complaint has yet to be screened in his earlier filed action, Case No. Civ. S-10-1181 JFM.
PLAINTIFF'S IN FORMA PAUPERIS APPLICATION
Plaintiff's application to proceed in forma pauperis is incomplete. In particular, the certificate portion of plaintiff's request, which must be completed by his institution of incarceration, is absent. In addition, plaintiff has not filed a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint.See 28 U.S.C. § 1915(a)(2). Nevertheless, plaintiff will be provided with another opportunity to submit a complete in forma pauperis application.
PLAINTIFF'S MOTION FOR 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, however, 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 that are 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 and therefore will deny plaintiff's request for the appointment of counsel.
CONCLUSION
In accordance with the above, IT IS HEREBY ORDERED that:
1. The court's June 2, 2010 findings and recommendations (Doc. No. 5) are vacated;
2. Plaintiff's May 25, 2010 motion to proceed in forma pauperis (Doc. No. 2) is denied;
3. Plaintiff shall submit, within thirty days from the date of this order a properly completed in forma pauperis application that includes a certified copy of plaintiff's prison trust account statement for the six-month period immediately preceding the filing of the complaint in this action and a prison official's certification; plaintiff is cautioned that failure to comply with this order or seek an extension of time to do so will result in a recommendation that this action be dismissed without prejudice;
4. The Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma Pauperis By a Prisoner for use in a civil rights action; and
5. Plaintiff's May 25, 2010 motion for the appointment of counsel (Doc. No. 4) is denied.
APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER:
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff vs. Defendant(s) I, _________________________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. § 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.In support of this application, I answer the following questions under penalty of perjury: Have the institution fill out the Certificate portion of this application and attach a certified copy of your prison trust account statement showing transactions for the past six months. and
1. Are you currently incarcerated: [] Yes [] No (If "No" DO NOT USE THIS FORM) If "Yes" state the place of your incarceration. ____________________________________ 2. Are you currently employed? [] Yes [] No a. If the answer is "Yes" state the amount of your pay. b. If the answer is "No" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. In the past twelve months have you received any money from any of the following sources? a. Business, profession or other self-employment [] Yes [] No b. Rent payments, interest or dividends [] Yes [] No c. Pensions, annuities or life insurance payments [] Yes [] No d. Disability or workers compensation payments [] Yes [] No e. Gifts or inheritances [] Yes [] No f. Any other sources [] Yes [] No If the answer to any of the above is "Yes" describe by that item each source of money and state the amount received what you expect you will continue to receive. Please attach an additional sheet if necessary. 4. Do you have cash or checking or savings accounts? [] Yes [] No If "Yes" state the total amount: ___________________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? [] Yes [] No If "Yes" describe the property and state its value. ____________________________________________ 6. Do you have any other assets? [] Yes [] No If "Yes" list the asset(s) and state the value of each asset listed. 7. List the persons who are dependent on you for support, state your relationship to each person and indicate how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. § 1915(b)(2).I declare under penalty of perjury that the above information is true and correct.
__________________ ____________________________________________________ DATE SIGNATURE OF APPLICANTCERTIFICATE (To be completed by the institution of incarceration)
I certify that the applicant named herein has the sum of $__________ on account to his/her credit at ________________________________ (name of institution). I further certify that during the past six months the applicant's average monthly balance was $________. I further certify that during the past six months the average of monthly deposits to the applicant's account was $______.(Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months.)
__________________ ____________________________________________________ DATE SIGNATURE OF AUTHORIZED OFFICER