(PC) Bauer v. Miranda et al, No. 2:2011cv02864 - Document 27 (E.D. Cal. 2012)
Court Description: ORDER signed by Magistrate Judge Edmund F. Brennan on 11/9/2012 ORDERING that plaintiff's 11/8/2012 objections are construed as an opposition to defendants' motion to dismiss; the 25 findings and recommendations are VACATED; and plaintiff's 26 request for appointment of counsel is DENIED. (Yin, K)
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(PC) Bauer v. Miranda et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JESSE LEE BAUER, Plaintiff, 11 12 13 14 15 No. 2:11-cv-2864 LKK EFB P vs. RAFAEL MIRANDA, et al., Defendants. ORDER / 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. On July 17, 2012, defendants filed a motion to dismiss for failure to exhaust 18 administrative remedies. See Fed. R. Civ. P. 12(b). After plaintiff failed to respond to the 19 motion, the court recommended that this action be dismissed for failure to prosecute. Plaintiff 20 filed objections to that recommendation, arguing that he did exhaust his administrative remedies 21 and requesting appointment of counsel. The court will construe plaintiff’s objections as an 22 opposition to the motion to dismiss and will vacate the findings and recommendations. 23 Additionally, the court will deny plaintiff’s request for appointment of counsel. 24 District courts lack authority to require counsel to represent indigent prisoners in 25 section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 26 exceptional circumstances, the court may request an attorney to voluntarily to represent such a 1 Dockets.Justia.com 1 plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 2 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether 3 “exceptional circumstances” exist, the court must consider the likelihood of success on the 4 merits as well as the ability of the plaintiff to articulate his claims pro se in light of the 5 complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 6 Having considered those factors, the court finds there are no exceptional circumstances in this 7 case. 8 9 Accordingly, it is hereby ORDERED that: 1. Plaintiff’s November 8, 2012 objections (Dckt. No. 26) are construed as an opposition to defendants’ motion to dismiss; 10 2. The October 4, 2012 findings and recommendations (Dckt. No. 25) are vacated; and 11 3. Plaintiff’s request for appointment of counsel (Dckt. No. 26) is denied. 12 DATED: November 9, 2012. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2
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