Houseman v. Smith et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER SMITH, et al.,
No. CIV S-10-1426 DAD P
Plaintiff has requested the appointment of counsel. The United States Supreme
Court has ruled that district courts lack authority to require counsel to represent indigent
prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
certain exceptional circumstances, the court may request the voluntary assistance of counsel
pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court
does not find the required exceptional circumstances. Plaintiff’s request for the appointment of
counsel will therefore be denied.
Plaintiff has also requested that if his motion for appointment of counsel is
denied, that this action be dismissed without prejudice so that he may re-file it at a later date.
Plaintiff is advised that the court can dismiss this action without prejudice pursuant to Rule
41(a)(2). However, plaintiff is cautioned that a two-year statute of limitations applies in § 1983
suits under California law. See Maldonado v. Harris, 370 F.3d 945, 954–55 (9th Cir.2004). In
addition, California prisoners, serving a term of less than for life, are entitled to two-years of
statutory tolling pursuant to California Code of Civil Procedure § 352.1(a). Finally, the statute of
limitations is tolled while a prisoner completes the administrative exhaustion process with
respect to his claims. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Therefore, the
court will order plaintiff to inform the court whether he still wishes to voluntarily dismiss this
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s April 27, 2011 request for the appointment of counsel (Doc. No. 18)
is denied; and
2. Within fourteen days from the service of this order, plaintiff shall inform the
court as to whether he requests voluntary dismissal of this action.
DATED: August 1, 2011.
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.
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