Unreported / Non-Citable
Background
Johnathan Howard Kiger, who was formerly incarcerated in state prison and is proceeding pro se, sues Tracy Johnson and other defendants under 42 U.S.C. § 1983 in the Eastern District of California. His fourth amended complaint is the operative pleading. On August 25, 2026, the magistrate judge issued findings and recommendations that several claims and defendants in that complaint be dismissed without leave to amend. Those are recommendations only. Nothing is dismissed unless and until the assigned district judge rules after considering any objections. The order does not describe the underlying factual allegations.
Kiger asked for more time to file objections (ECF No. 43). He also asked the court to appoint counsel, citing his indigency, lack of a stable address, and the complexity of his legal claims. The order's text cites ECF No. 43 for the counsel request, but its decretal paragraph identifies the counsel motion as ECF No. 44. When the order issued, defendants had not yet returned service, and Kiger had used early discovery to identify several Doe defendants.
The Court’s Holding
The court found good cause and granted the extension. Kiger has 60 days from October 27, 2026, the date of the order, to file objections to the findings and recommendations. The order does not decide whether the recommended dismissals or the denial of leave to amend are correct. That question remains for the district judge.
On counsel, the court began with the governing rules. Under Mallard v. United States District Court, 490 U.S. 296 (1989), district courts lack authority under 28 U.S.C. § 1915 to require counsel to represent indigent prisoners in § 1983 cases. In exceptional circumstances, a court may request that an attorney volunteer. The test weighs the plaintiff's likelihood of success on the merits and his ability to articulate his claims pro se given the complexity of the legal issues. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not qualify. The order also noted that other sources of law, such as disability accommodation or procedural due process under Turner v. Rogers, can in some settings call for appointed counsel.
Applying those rules, the court found that Kiger had not shown exceptional circumstances or other grounds for appointment at this time. His indigency is common to incarcerated and formerly incarcerated pro se litigants. Because defendants had not returned service, it was far too early to assess his likelihood of success. His successful use of early discovery to identify Doe defendants gave the court confidence that he can proceed pro se at this very early stage. The denial is without prejudice to renewal at a later stage of the case.
Key Takeaways
- A motion to extend the time to object to findings and recommendations can be granted on a showing of good cause, and here the plaintiff received 60 days from the date of the order.
- Federal courts cannot compel counsel to represent indigent prisoners in § 1983 cases. They may only request voluntary counsel under § 1915(e)(1) in exceptional circumstances.
- Indigency, like lack of legal education or limited library access, is common to pro se litigants and does not by itself establish exceptional circumstances.
- At the pleading and service stage, a court may find it too early to gauge likelihood of success, and a plaintiff's effective early discovery can show he can proceed without counsel.
- Because the denial is without prejudice, Kiger may renew the request later, and the pending recommendations to dismiss claims remain unresolved.
Why It Matters
This is an unpublished, case-specific order by a magistrate judge, so it carries no precedential weight. It is useful as an example of how courts in the Eastern District of California apply the Ninth Circuit's exceptional-circumstances test to pro se civil rights plaintiffs. It shows that a plaintiff's demonstrated ability to litigate, such as obtaining early discovery to name Doe defendants, can weigh against appointment, and that timing matters because merits-based factors are hard to assess before service.
The order also shows the practical posture of the case. The objections deadline protects Kiger's chance to challenge the recommended partial dismissals, but the order expresses no view on whether those recommendations will be adopted. The court identified other possible grounds for appointment, including disability-related accommodation and due process, but found none established on this record. Kiger may renew his request if circumstances change.