Houseman v. Smith et al

Filing 23

ORDER signed by Magistrate Judge Dale A. Drozd on 08/01/11 denying 18 Motion to Appoint Counsel. Within 14 days from the service of this order, plaintiff shall inform the court as to whether he requests voluntary dismissal of this action. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

RANDALL HOUSEMAN,
Plaintiff,

11
12
13
14

vs.
CHRISTOPHER SMITH, et al.,
Defendants.

ORDER
/

15
16

No. CIV S-10-1426 DAD P

Plaintiff has requested the appointment of counsel. The United States Supreme

17

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

18

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

19

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

20

pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

21

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court

22

does not find the required exceptional circumstances. Plaintiff’s request for the appointment of

23

counsel will therefore be denied.

24

Plaintiff has also requested that if his motion for appointment of counsel is

25

denied, that this action be dismissed without prejudice so that he may re-file it at a later date.

26

Plaintiff is advised that the court can dismiss this action without prejudice pursuant to Rule
1

1

41(a)(2). However, plaintiff is cautioned that a two-year statute of limitations applies in § 1983

2

suits under California law. See Maldonado v. Harris, 370 F.3d 945, 954–55 (9th Cir.2004). In

3

addition, California prisoners, serving a term of less than for life, are entitled to two-years of

4

statutory tolling pursuant to California Code of Civil Procedure § 352.1(a). Finally, the statute of

5

limitations is tolled while a prisoner completes the administrative exhaustion process with

6

respect to his claims. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Therefore, the

7

court will order plaintiff to inform the court whether he still wishes to voluntarily dismiss this

8

action.1
Accordingly, IT IS HEREBY ORDERED that:

9

1. Plaintiff’s April 27, 2011 request for the appointment of counsel (Doc. No. 18)

10
11

is denied; and
2. Within fourteen days from the service of this order, plaintiff shall inform the

12
13

court as to whether he requests voluntary dismissal of this action.

14

DATED: August 1, 2011.

15
16
17
18

DAD:4
hous1426.31+

19
20
21
22
23
24
25
26

In the event plaintiff elects to proceed with this action, the court also notes that there is a
motion to compel, filed by defendants on February 22, 2011, that is pending before the court and to
which plaintiff has failed to file timely opposition.
1

2