Armentero v. Kramer et al

Filing 61

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 7/24/09 ORDERING that plaintiffs motion for the appointment of counsel 58 is DENIED; Plaintiffs motion for the entry of default 54 is denied; and plaintiffs requests that the court set a trial date 56 and 57 are DENIED without prejudice. It is RECOMMENDED that 59 MOTION for SUMMARY JUDGMENT be denied as untimely. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. C. LEVAN, et al., Defendants. / Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Several of his motions are pending before the court. 1. Motion To Appoint Counsel Plaintiff has requested the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied. 1 ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA LUIS LORENZO ARMENTERO, Plaintiff, No. CIV S-06-1838 GEB KJM P

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2. Motion For Default Judgment Plaintiff claims that defendant Taylor has failed to file an answer or otherwise undertake a defense to the complaint. Plaintiff is mistaken. Defendant Taylor answered the complaint on July 12, 2007. 3. Requests For A Trial Date Plaintiff has filed two requests that the court set a trial date. Further dates will be set, if necessary, after the resolution of the pending motion for summary judgment. 4. Plaintiff's Motion For Summary Judgment In the scheduling order of July 25, 2007, the court set January 4, 2008 as the deadline for dispositive motions. Defendant Taylor sought permission to file a renewed motion for summary judgment outside this schedule; plaintiff did not. Accordingly, his motion is not timely. IT IS HEREBY ORDERED that: 1. Plaintiff's request for the appointment of counsel (docket no. 58) is denied; 2. Plaintiff's motion for the entry of default (docket no. 54) is denied; and 3. Plaintiff's requests that the court set a trial date (docket nos. 56 & 57) are denied without prejudice. IT IS HEREBY RECOMMENDED that plaintiff's motion for summary judgment (docket no. 59) be denied as untimely. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised ///// 2

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that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: July 24, 2009.

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