Opinion
No. 08 CV 2261 JCW.
April 1, 2009
ORDER
Walker, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Walker has filed (1) a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and (2) a motion for the appointment of counsel also pursuant to 28 U.S.C. § 1915.
With respect to his first request, Walker appears to have used the incorrect in forma pauperis application form. Critically, the form used does not include a certification authorizing the agency having custody over him to collect from his trust account and forward to the Clerk of Court payments in accordance with 18 U.S.C. § 1915(b)(2). Accordingly, Walker's request to proceed in forma pauperis is DENIED without prejudice. The Clerk of Court shall send Walker the correct Application to Proceed In Forma Pauperis By a Prisoner for use in a civil rights action. Within twenty-eight days of the date of this order, Walker shall submit a properly completed in forma pauperis application that includes the certification described above, and any other required documents. Walker is cautioned that failure to comply with this order or to seek an extension of time to do so will result in a recommendation that this action be dismissed without prejudice.
With respect to Walker's motion for the appointment of counsel, the Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in section 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 this case, the court holds that the required exceptional circumstances do not exist. Accordingly, Walker's motion for the appointment of counsel is DENIED without prejudice.