Scott v. McDonald

Filing 73

ORDER signed by Magistrate Judge Edmund F. Brennan on 01/03/12 ORDERING that plaintiff's 67 Motion for Extension of Time is GRANTED; plaintiff's opposition to defendants' motion to dismiss shall be filed within 30 days; plaintiff's 68 Motion to Appoint Counsel is DENIED. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD SCOTT,
Plaintiff,

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vs.

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No. CIV S-09-0851 MCE EFB P

M. MCDONALD, et al.,
Defendants.

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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. He has requested that the court appoint counsel, as well as a second extension of

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time to file an opposition to defendants’ September 28, 2011 motion to dismiss.

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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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However, plaintiff’s request for an extension of time is granted and plaintiff has 30 days

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from the date this order is served to file and serve an opposition to defendant’s September 28,

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2011, motion to dismiss.

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Plaintiff is hereby reminded that in cases in which one party is incarcerated and

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proceeding without counsel, motions ordinarily are submitted on the record without oral

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argument. Local Rule 230(l). “Opposition, if any, to the granting of the motion shall be served

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and filed with the Clerk by the responding party not more than eighteen (18) days, plus three (3)

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days for mailing or electronic service, after the date of service of the motion.” Id. A responding

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party’s failure “to file written opposition or to file a statement of no opposition may be deemed a

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waiver of any opposition to the granting of the motion and may result in the imposition of

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sanctions.” Id. Furthermore, a party’s failure to comply with any order or with the Local Rules

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“may be grounds for imposition of any and all sanctions authorized by statute or Rule or within

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the inherent power of the Court.” Local Rule 110. The court may recommend that an action be

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dismissed with or without prejudice, as appropriate, if a party disobeys an order or the Local

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Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse

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discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an

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amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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On June 17, 2011, the court advised plaintiff of the requirements for filing an opposition

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to the motion, that failure to oppose such a motion may be deemed a waiver of opposition to the

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motion and that failure to comply with the Local Rules may result in a recommendation of

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dismissal.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 12, 2011, request for an extension of time is granted.

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2. Plaintiff’s opposition to defendants’ motion to dismiss shall be filed within 30 days of

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the date this order is served.
3. Plaintiff’s December 15, 2011, request for appointment of counsel is denied.
DATED: January 3, 2012.

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