Opinion
CASE NO. C09-5347RJB/JRC.
August 4, 2009
ORDER
This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrate Judge's Rules MJR 1, MJR 3, and MJR 4. The matter is before the court on two motions filed by plaintiff. The first motion is a motion for appointment of counsel, (Dkt. # 7). The second motion is a motion to amend the complaint (Dkt. # 10).
The motion for appointment of counsel is DENIED. 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(e)(1), can request counsel to represent a party, 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's Motion to Appoint Counsel (Dkt. # 7) is DENIED.
Plaintiff has asked for opportunity to amend his complaint. (Dkt. # 10). This case is not in a posture where the court can determine the likelihood of success on the merits. The motion to amend the complaint is GRANTED. A plaintiff may amend his complaint once as a matter of course. Fed.R.Civ.P. 15(a). The amended complaint will act as a complete substitute for the original. Plaintiff is reminded to provide a copy of the amended complaint and filled-out Marshal's service form for each defendant if he wishes the Court to Order the Marshal's Service to attempt to serve by mail. The amended complaint will be due on or before September 4, 2009.
The Clerk's office is directed to remove the entry giving Mr. Sandberg until July 20, 2009, to file Marshal's forms and Dkt. entries 7 and 10 from the Court's calendar.