Opinion
No. CIV S-06-2035 FCD KJM P.
November 20, 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 May 8, 2007, plaintiff's amended complaint was dismissed with leave to file a second amended complaint. Plaintiff has now filed a second amended complaint.
Plaintiff's second amended complaint states cognizable Eighth Amendment claims against defendants Kendall and Rowlett pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of his Eighth Amendment claims against defendants Kendall and Rowlett. With respect to the other claims and defendants identified in plaintiff's second amended complaint, plaintiff's second amended complaint fails to state a claim upon which relief can be granted.
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.
Accordingly, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendants Kendall and Rowlett.
2. The Clerk of the Court shall send plaintiff 2 USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed July 24, 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 for each defendant listed in number 1 above; and
d. Three copies of the endorsed complaint filed July 24, 2007.
4. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. Plaintiff's July 24, 2007 motion for the appointment of counsel is denied.