Herrera v. Statti

Filing 69

ORDER signed by Magistrate Judge Dale A. Drozd on 6/18/2013 GRANTING plaintiff's 68 motion for an extension of time; within 30 days, plaintiff shall file his supplemental opposition; DENYING plaintiff's 65 motion for the court to mail a letter from him to the Office of the Federal Defender, or alternatively plaintiff's motion for appointment of counsel; and DENYING plaintiff's 66 request for a court order. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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vs.

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No. 2:10-cv-1154 MCE DAD P

P. STATTI, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking
relief under 42 U.S.C. § 1983.

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On May 3, 2013, the court granted plaintiff thirty days to submit a supplemental

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opposition to defendants’ motion to dismiss. Plaintiff has since filed a request for an extension

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of time. Good cause appearing, the court will grant plaintiff’s request. However, the court will

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grant no further extensions of time for this purpose.

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Plaintiff has also filed a motion for the court to mail a letter from him to the

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Office of the Federal Defender. In the letter, plaintiff requests representation in this matter.

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Plaintiff is free to mail his letter directly to the Office of the Federal Defender, though the court

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notes that office provides services to indigent individual charged with criminal offenses and

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normally does not provide representation in connection with civil rights actions such as this.
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Moreover, insofar as plaintiff is requesting appointment of counsel, the United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Finally, plaintiff has filed a request for a court order requiring defendant Medina

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to file a responsive pleading in this matter. Plaintiff is advised that, on April 5, 2013, defendant

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Medina waived service and had sixty days thereafter to file a responsive pleading in this matter.

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On June 5, 2013, defendant Medina filed an answer. Accordingly, the court will deny plaintiff’s

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request for a court order.

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

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1. Plaintiff’s motion for an extension of time (Doc. No. 68) is granted;

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2. Within thirty days of the date of service of this order, plaintiff shall file his

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supplemental opposition. The court will grant no further extensions of time for this purpose;

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3. Plaintiff’s motion for the court to mail a letter from him to the Office of the

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Federal Defender, or alternatively plaintiff’s motion for appointment of counsel (Doc. No. 65), is

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denied; and

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4. Plaintiff’s request for a court order (Doc. No. 66) is denied.
DATED: June 18, 2013.

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DAD:9
herr1154.36appeals

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