(PC) Mayes v. Frasiher et al, No. 2:2018cv02347 - Document 21 (E.D. Cal. 2019)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 1/31/2019 DENYING without prejudice 20 Motion for the Appointment of Counsel; VACATING 19 Findings and Recommendations; and GRANTING Plaintiff 30 days from the date of this order to file an amended complaint. (Henshaw, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD VINCENT MAYES, 12 13 14 15 No. 2:18-cv-2347 TLN KJN P Plaintiff, v. ORDER FRASIHER, et al., Defendants. 16 17 By order filed November 13, 2018, plaintiff’s complaint was dismissed and thirty days 18 leave to file an amended complaint was granted. (ECF No. 13.) Thirty days passed and plaintiff 19 did not file an amended complaint. Accordingly, on January 4, 2019, the undersigned 20 recommended that this action be dismissed. (ECF No. 19.) 21 On January 14, 2019, plaintiff filed a second motion for the appointment of counsel. 22 District courts lack authority to require counsel to represent indigent prisoners in section 1983 23 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 24 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 25 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 26 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 27 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 28 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 1 1 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 2 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 3 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 4 legal education and limited law library access, do not establish exceptional circumstances that 5 warrant a request for voluntary assistance of counsel. 6 Plaintiff alleges that he suffers from mental illness and cognitive deficit. While the 7 undersigned is sympathetic to these alleged conditions, the undersigned does not find exceptional 8 circumstances warranting appointment of counsel. Accordingly, the motion for appointment of 9 counsel is denied. However, plaintiff will be granted one final opportunity to file an amended 10 complaint. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for the appointment of counsel (ECF No. 20) is denied without 13 prejudice; 14 2. The January 4, 2019 findings and recommendations (ECF No. 19) are vacated; 15 3. Plaintiff is granted thirty days from the date of this order to file an amended complaint; 16 failure to file an amended complaint within that time will result in a recommendation of dismissal 17 of this action. 18 Dated: January 31, 2019 19 20 21 22 23 maye2347.31(2) 24 25 26 27 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.