Opinion
No. CIV S-03-1729 GEB DAD P.
February 9, 2006
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On December 13, 2005, the court filed findings and recommendations recommending that this action be dismissed for plaintiff's failure to file his third amended complaint after the court had granted two extensions of time. Plaintiff has filed objections to the findings and recommendations and a motion for reconsideration. Plaintiff contends that he delivered his third amended complaint to prison authorities for forwarding to the court. (Objections at 3.) The third amended complaint was never filed with the court. In the interest of justice, the court will vacate the findings and recommendations and order plaintiff to once again file his third amended complaint.
Plaintiff has also 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 at this time.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations, filed on December 13, 2005, are vacated;
2. Within fifteen days from the service of this order, plaintiff shall file his third amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint"; plaintiff must submit an original but is not required to submit two additional copies of his third amended complaint; plaintiff's third amended complaint must comply with the court's August 15, 2005 order which advised plaintiff that certain claims were not cognizable or properly filed with this court; failure to file a third amended complaint in accordance with this and prior orders will result in a recommendation that this action be dismissed;
3. Plaintiff's January 11, 2006 motion for reconsideration is denied as moot; and
4. Plaintiff's request for the appointment of counsel, included in his January 11, 2006 objections, is denied.