Real v. Walker et al

Filing 38

ORDER signed by Magistrate Judge Kendall J. Newman on 05/25/11 ordering plaintiff's motion 37 for a 28 days extension of time within which to file an opposition to defendants' pending motion to dismiss is granted; plaintiff shall file and serve his opposition on or before 06/24/11; defendants may file a reply within 7 days after service of plaintiff's opposition. Plaintiff's motion 32 to file a supplemental complaint is denied. Plaintiff's motion 46 for appointment of counsel is denied without prejudice.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDY REAL,
Plaintiff,

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vs.

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No. 2:09-cv-3273 GEB KJN P

JAMES WALKER, Warden, et al.,
Defendants.

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ORDER
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This prisoner civil rights action proceeds on plaintiff’s First Amended Complaint

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filed March 22, 2010, against eighteen defendants. Plaintiff alleges twenty-seven claims,

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premised primarily on challenges to his validation as an associate of the Mexican Mafia prison

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gang.

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Presently pending is defendants’ motion to dismiss filed April 22, 2011. Plaintiff,

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who is incarcerated at Pelican Bay State Prison, requests a 28-day extension of time within which

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to file an opposition to the motion to dismiss, noting that he resides in the Segregated Housing

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Unit and has limited access to the prison law library. (Dkt. No. 37.) For good cause shown, the

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request is granted.

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Also pending is plaintiff’s motion to file a supplemental complaint (Dkt. No. 32),
filed in tandem with a proposed supplemental complaint (Dkt. No. 33), and plaintiff’s second
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motion for appointment of counsel (Dkt. No. 34).
“Rule 15(d) provides that a court may permit a party to serve a supplemental

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pleading setting forth transactions, occurrences, or events that have happened since the filing of

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the pleading to be supplemented, thereby bringing the case up to date. Leave must be sought by

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motion, upon reasonable notice to the other parties, and the court may impose such terms as are

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just. The purpose of subdivision (d) is to promote as complete an adjudication of the dispute

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between the parties as is possible.” Wright, Miller, Kane & Marcus, 6A Fed. Prac. & Proc. Civ.

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§ 1504 (2d ed. 2010). The proposed supplemental complaint seeks to add nine more defendants

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and several new claims associated with plaintiff’s incarceration at Pelican Bay State Prison,

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while the currently operative complaint is limited to plaintiff’s allegations against officials

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working at plaintiff’s former place of incarceration, California State Prison - Sacramento, as well

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as officials associated more broadly with the California Department of Corrections and

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Rehabilitation. Because the pending motion to dismiss asserts that plaintiff’s First Amended

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Complaint fails to allege any actionable claim, the court, at this time, denies plaintiff’s motion to

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add additional defendants and claims. The court’s review and decision on the motion to dismiss

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will dictate the appropriateness of permitting further pleadings in this action.

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Plaintiff’s motion for appointment of counsel alleges that “the evidence at issue

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here involves confidential information that can only be divulged to an attorney under protective

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order.” (Dkt. No. 34 at 1.) Although district courts lack authority to require counsel to represent

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indigent prisoners in Section 1983 cases, Mallard v. United States District Court, 490 U.S. 296,

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298 (1989), in certain exceptional circumstances, the court may request the voluntary assistance

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of counsel pursuant to 28 U.S.C. § 1915, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Because plaintiff’s filings

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demonstrate that plaintiff is able to fully and clearly articulate his claims and arguments, the

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court finds that the required exceptional circumstances are not present at this time. However,

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when addressing the merits of defendants’ motion to dismiss, and plaintiff’s opposition thereto,
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the court will further consider plaintiff’s assertion that he requires appointed counsel in order to

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obtain confidential evidence subject to protective order. (Dkt. No. 34 at 1.) At the present time,

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however, plaintiff’s motion for appointment of counsel is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion (Dkt. No. 37) for a 28-day extension of time within which to

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file an opposition to defendants’ pending motion to dismiss is granted; plaintiff shall file and

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serve his opposition on or before Friday, June 24, 2011; defendants may file a reply within 7 days

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after service of plaintiff’s opposition.
2. Plaintiff’s motion (Dkt. No. 32) to file a supplemental complaint is denied.

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3. Plaintiff’s motion (Dkt. No. 34) for appointment of counsel is denied without

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prejudice.

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DATED: May 25, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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real3273.eot.etc

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