Opinion
No. CIV S-05-2336 GEB KJM P.
February 15, 2008
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 December 13, 2007, plaintiff's third amended complaint was dismissed with leave to file a fourth amended complaint. Plaintiff has now filed a fourth amended complaint.
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.
The fourth amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for the appointment of counsel (doc. no. 31) is denied.
2. Service is appropriate for the following defendants: Kofed, Traquina and Kanan.
3. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet and a copy of the fourth amended complaint filed January 23, 2008 (docket no. 32).
4. 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 2 above; and
d. Four copies of the endorsed fourth amended complaint filed January 23, 2008.
5. 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.
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 forms _______ copies of the _____________________________ Amended Complaint DATED: ______________________________ Plaintiff