Russo v. Livingston

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUSTIN RUSSO, Case No. 25-cv-09294-AMO (PR) 8 Plaintiff, ORDER GRANTING PLAINTIFF A THIRD EXTENSION OF TIME TO FILE v. 9 COMPLETED IN FORMA PAUPERIS APPLICATION; AND DENYING MOTION 10 DAVID LIVINGSTON, et al., FOR APPOINTMENT OF COUNSEL Defendants. 11 Re: Dkt. No. 3 12 Plaintiff Justin Russo, a state prisoner, filed the instant civil rights action pursuant to 42 13 U.S.C. § 1983, representing himself. On October 29, 2025, the Clerk of the Court sent Russo a 14 notice informing him that his action could not go forward as he had not filed a completed 15 prisoner’s in forma pauperis (“IFP”) application. Dkt. 4. The Clerk provided him with a blank 16 IFP application form, along with a return envelope, instructions, and a notification that he must 17 either pay the full filing fee or return the completed IFP application within twenty-eight days, or 18 his action would be dismissed. Id. 19 On December 4, 2025, Russo filed an IFP application. Dkt. 5. However, this IFP 20 application is incomplete because he did not include a copy of his prisoner trust account statement 21 for the previous six months. Thus, Russo failed to comply with the Clerk’s notice requiring either 22 a completed IFP application or payment of the full filing fee by the twenty-eight day deadline, 23 which had since passed. However, Russo informed the Court that he had been transferred to 24 North Kern State Prison. Dkt. 7. 25 On April 13, 2026, the Court granted Russo an extension of time to complete his IFP 26 application and directed the Clerk to send him a blank prisoner IFP application by mail. Dkt. 8. 27 The Court instructed Russo to file his prisoner trust account statement for the previous six months 1 in the dismissal of this action without prejudice. Id. at 1-2. 2 On May 7, 2026, Russo filed a motion for a second extension of time to file his IFP 3 application, explaining that he had only recently received the Court’s April 13, 2026 Order and 4 that it would take additional time to obtain the necessary materials to complete his IFP application. 5 Dkt. 9. On May 13, 2026, the Court granted Russo’s request for a second extension. Dkt. 11. 6 However, on June 3, 2026, the Court’s May 13, 2026 Order was returned to the Court as 7 undeliverable. Dkt. 12. The record shows that Russo has since been transferred to Pleasant 8 Valley State Prison. 9 Good cause appearing, based on Russo’s most recent transfer, the Court on its own motion 10 GRANTS Russo a third extension of time to file a completed IFP application. No later than 11 twenty-eight (28) days from the date of this Order, Russo shall file his prisoner trust account 12 statement for the previous six months. The failure to do so on or by the twenty-eight-day deadline 13 will result in the dismissal of this action without prejudice. 14 Also, Russo has filed a motion for appointment of counsel. Dkt. 3. There is no 15 constitutional right to counsel in a civil case unless an indigent litigant may lose his physical 16 liberty if he loses the litigation. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). The 17 court may seek counsel to represent an indigent litigant under 28 U.S.C. § 1915 only in 18 “exceptional circumstances,” the determination of which requires an evaluation of both (1) the 19 likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his claims as a 20 self-represented litigant in light of the complexity of the legal issues involved. See id. at 1525; 21 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 22 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on 23 a request for counsel under section 1915. See id. 24 The Court is unable to assess at this time whether exceptional circumstances exist which 25 would warrant seeking volunteer counsel to accept a pro bono appointment. The proceedings are 26 at an early stage and it is premature for the Court to determine Russo’s likelihood of success on 27 the merits. Moreover, Russo has been able to articulate his claims adequately as a self-represented ] F.3d 1101, 1103 (9th Cir. 2004). Accordingly, the request for appointment of counsel is DENIED 2 || without prejudice.’ Dkt. 3. 3 The Clerk shall send Russo a blank prisoner IFP application form along with a copy of this 4 || Order. 5 IT IS SO ORDERED. 6 || Dated: 6/18/2026 7 □ □□ 8 . RACELI MARTINEZ-OFGUIN 9 United States District Judge 10 1] a 12 13 14 15 16 17 Z 18 19 20 21 22 23 24 25 %6 ' The Court may of course consider appointing of counsel later in the proceedings; that is, after Russo has filed a completed IFP application, the Court has reviewed the complaint to serve any 97 || cognizable claims, and Defendants have filed their dispositive motion. At that time, the Court will be in a better position to consider the procedural and substantive matters at issue. Russo may 9g || therefore file a renewed motion for the appointment of counsel after Defendants’ dispositive motion has been filed.