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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MARTIN FRUTOS, JR.,

Plaintiff, No. CIV S-04-2361 GEB EFB P

vs.

CALIFORNIA DEPARTMENT OF

CORRECTIONS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

filed pursuant to 42 U.S.C. § 1983. On September 27, 2006, plaintiff filed a request for

reconsideration of the order filed September 13, 2006, wherein the court found that plaintiff’s

complaint did not state a cause of action against defendants D.L. Runnels, Roy Castro, and Cal

Terhune. Plaintiff has subsequently, however, moved for leave to file an amended complaint,

together with a proposed amended complaint. Plaintiff’s motion for reconsideration in this

regard will therefore be denied as moot.

Plaintiff also moves for reconsideration of the court’s denial of his request for the

appointment of counsel. Plaintiff requests that the court appoint Herman Franck to represent him

in this action. If Mr. Franck has agreed to represent plaintiff, the court’s appointment is

unnecessary. Herman Franck should file a notice of substitution of counsel with the court

Case 2:04-cv-02361-ALA Document 24 Filed 11/14/06 Page 1 of 4
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pursuant to Local Rule 83-182(e). If Mr. Franck is not willing to undertake representation, the

court cannot appoint him to do so. Plaintiff is advised that in § 1983 cases, the appointment of

counsel does not include payment for counsel’s services. Thus, any appointed counsel must be

willing to handle the case on a pro bono basis, with the possibility of attorney fees only if the suit

is successful, as provided for in 42 U.S.C. § 1988. Moreover, although 28 U.S.C. § 1915(d)

allows the court to request that an attorney represent an indigent civil litigant, in this circuit, the

exercise of that discretion is limited to cases presenting “exceptional circumstances.” Aldabe v.

Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). At this time, the court does not find the existence

of exceptional circumstances justifying the appointment of counsel. Thus, plaintiff’s request for

the appointment of counsel is denied. This denial is without prejudice to plaintiff's right to bring

this motion again at a later stage of the proceedings.

Plaintiff’s 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 September 27, 2006, motion for reconsideration is denied. 

2. Service is appropriate for the following defendants: Reed, Hubbard, Wagner,

Stone, Colon, Porter, Rianda, Castro, Runnels, and Terhune.

3. The Clerk of the Court shall send plaintiff 10 USM-285 forms, one summons,

an instruction sheet and a copy of the amended complaint filed October 18, 2006.

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 1

above; and 

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d. Eleven copies of the endorsed amended complaint filed October 18,

2006. 

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. 

DATED: November 13, 2006.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MARTIN FRUTOS, JR.,

Plaintiff, No. CIV S-04-2361 GEB EFB P

vs.

CALIFORNIA DEPARTMENT OF

CORRECTIONS, et al.,

NOTICE OF SUBMISSION

Defendants. 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

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