Savage v. Hubbard et al

Filing 127

ORDER signed by Magistrate Judge John F. Moulds on 06/28/11 DENYING without prejudice 125 Motion to Appoint Counsel; GRANTING 126 Motion for Extension. Plaintiff shall file and serve opposition to 124 Motion for Summary Judgment within 60 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOB SAVAGE,
Plaintiff,

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vs.
SUZAN HUBBARD, et al.,
Defendants.

ORDER
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No. 2:08-cv-1346 LKK JFM (PC)

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On June 9, 2011, plaintiff filed his third request for appointment of counsel.

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Plaintiff’s previous two requests were denied. See Orders filed September 15, 2010 and

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December 17, 2008.

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As noted in the court’s prior orders, the United States Supreme Court has ruled

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that district courts lack authority to require counsel to represent indigent prisoners in § 1983

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

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circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C.

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§ 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright,

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900 F.2d 1332, 1335-36 (9th Cir. 1990). In support of the present request, plaintiff presents

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evidence that he suffers from a speech impediment so severe that the United States District Court
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for the Central District of California and the United States Court of Appeals for the Ninth Circuit

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both concluded in habeas corpus proceedings that the state courts had not violated petitioner’s

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constitutional to right of self-representation by imposing conditions on petitioner’s handling of

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his own defense at his criminal trial because of that impediment.1 Plaintiff contends, inter alia,

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that the same impediment will impede his ability to present this case at trial.
A defense motion for summary judgment is currently pending before the court.

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Review of the record shows that plaintiff has been adequately able to litigate this action while it

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has been proceeding solely on papers filed by the parties, and the court does not find exceptional

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circumstances that would require appointment of counsel prior to disposition of the pending

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motion for summary judgment. For that reason, plaintiff’s motion will be denied without

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prejudice to its renewal, as appropriate, should this matter proceed to trial following disposition

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of defendants’ motion for summary judgment.
As noted above, plaintiff has also moved for an extension of time to file an

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opposition to defendants’ May 31, 2011 motion for summary judgment. Good cause appearing,

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that request will be granted.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 9, 2011 motion for appointment of counsel is denied without

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prejudice;

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2. Plaintiff's June 17, 2011 motion for an extension of time is granted;

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3. Plaintiff is granted sixty days from the date of this order in which to file and

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serve an opposition to defendants’ May 31, 2011 motion for summary judgment; and

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It appears that petitioner’s state criminal trial occurred in the early 1980s. See Savage v.
Estelle, 908 F.2d 508 (9th Cir. 1990), attached as Ex. A to Motion for Appointment of Counsel, filed
June 9, 2011.
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4. Defendants’ reply, if any, shall be filed and served not later than ten days

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thereafter.

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DATED: June 28, 2011.

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/12:md
sava1346.31(2)

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