Lopez v. Peterson, et al

Filing 337

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/27/2011 denying 335 Motion for Sanctions and Motion to Appoint Counsel; granting 336 Motion for Clarification; within 30 days, plaintiff shall file either (a) an opposition to the 4/14/2011 Motion to Dimiss, or (b) a statement indicating that plaintiff's 4/26/2011 filing serves as his opposition to the pending Motion to Dismiss. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed withouth prejudice. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW RICK LOPEZ,

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Plaintiff,

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No. CIV S-98-2111 LKK EFB P

vs.
D. PETERSON, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On April 14, 2011, defendants filed a motion to dismiss. Dckt. No. 333. On

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April 26, 2011, plaintiff filed a request for court to appoint counsel, as well as a request that the

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court sanction the defendants for filing a motion to dismiss. Dckt. No. 335. On May 6, 2011,

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defendants requested clarification regarding plaintiff’s April 26th filing. Dckt. No. 336.

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Specifically, defendants request that either the court or plaintiff clarify whether the April 26th

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filing will serve as plaintiff’s opposition to defendants’ motion to dismiss.

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I. Plaintiff’s Request for Counsel

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District courts lack authority to require counsel to represent indigent prisoners in

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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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exceptional circumstances, the court may request counsel voluntarily to represent such a

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plaintiff. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood

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v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no

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exceptional circumstances in this case.

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2. Plaintiff’s Request for Sanctions and Defendants’ Request for Clarification

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Plaintiff requests that the court sanction defendants on the ground that their motion to

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dismiss “is replete with falsehood and misrepresentations.” Dckt. No. 335 at 1. Plaintiff states

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that he is currently unable to address defendant’ motion to dismiss in its entirety, but requests

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that the court deny defendants’ motion on the grounds that it is “frivolous, malicious, and

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harrassing [sic].” Id. at 1, 16. Plaintiff also asks the court to recommend that defense counsel’s

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license to practice law be revoked. Id. at 16.

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Plaintiff’s request for sanctions lacks merit and will be denied. Additionally, defendants’

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request for clarification is understandable. Plaintiff implies that his April 26th filing is not his

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opposition to defendants’ motion to dismiss, yet many of the arguments raised therein could be

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appropriately raised in an opposition, and plaintiff also requests that defendants’ motion to

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dismiss be denied. See Dckt. No. 335. Accordingly, the court will grant plaintiff 30 days to file

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either an opposition the April 14, 2011 motion to dismiss, or a statement indicating that his

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April 26th filing serves as his opposition to the pending motion to dismiss.

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Accordingly, IT IS HEREBY ORDERED that;

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1. Plaintiff’s March 26, 2011, request for appointment of counsel and for sanctions is

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denied.

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2. Defendants’ May 6, 2011 request for clarification is granted in that within 30 days,

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plaintiff shall file either (a) an opposition the April 14, 2011 motion to dismiss, or (b) a

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statement indicating that plaintiff’s April 26th filing serves as his opposition to the pending

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motion to dismiss. Plaintiff’s failure to comply with this order will result in a recommendation

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that this action be dismissed without prejudice. See E.D. Cal. L. R. 110, 230(l).

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DATED: May 27, 2011.

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