Elmore v. Arong et al

Filing 53

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/4/09 ORDERING that pltf's 51 request for appointment of counsel is DENIED; and w/in 21 days, pltf to file either an opposition or statement of non-opposition to the 48 motion for summary judgment, pltf's failure to comply will result in a recommendation that this action be dismissed under F.R.Civ.P. 41(b). (Yin, K)

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. ARONG, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He has requested that the court appoint counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request counsel voluntarily to represent such a plaintiff. 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). The court finds that there are no exceptional circumstances in this case. On September 11, 2009, defendants Maxham, Moreno, Rendon, and Perfino filed a motion for summary judgment. See Fed. R. Civ. P. 56. On November 19, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1 ORDER TONIE ELMORE, Plaintiff, No. CIV S-07-1463 WBS EFB P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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1988). That order also informed plaintiff of the requirements for filing an opposition to the pending motion and that failure to oppose such a motion might be deemed a waiver of opposition to the motion. Plaintiff failed to file an opposition. On October 29, 2009, the court gave plaintiff 20 days to file an opposition or a statement of no-opposition to defendants' motion. The 20 days have passed and plaintiff has not filed an opposition or statement of no opposition. However, the court will construe plaintiff's request for counsel as also requesting an extension of time. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's November 23, 2009 request for appointment of counsel is denied; and 2. Within 21 days of the date of this order, plaintiff shall file either an opposition to the motion for summary judgment or a statement of no opposition. Rule 41(b) of the Federal Rules of Civil Procedure authorizes the court to dismiss an action for failure to obey this court's orders and the applicable procedural rules. Plaintiff's failure to file an opposition or a statement of no opposition will result in a recommendation that this action be dismissed under the authority of Rule 41(b) DATED: December 4, 2009.

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