Jimenez v. Horel

Filing 41

ORDER signed by Magistrate Judge Kendall J. Newman on 9/12/11 ORDERING that defendants 40 motion to modify the scheduling order is GRANTED; The 33 scheduling order is VACATED; and Plaintiffs 39 motion for appointment of counsel is DENIED. (Dillon, 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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ROBERT CHRISTOPHER JIMENEZ,

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Plaintiff,

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No. 2:10-cv-2943 KJN P

vs.
J. WHITFIELD, et al.,

ORDER AND REVISED

Defendants.

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SCHEDULING ORDER
/

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On September 7, 2011, defendants filed a motion to modify the court’s scheduling

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order. Defendants seek an extension of time to depose plaintiff and prepare and file a motion for

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summary judgment because defendants’ motion for judgment on the pleadings is pending and

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resolution of the motion may resolve some or all of plaintiff’s claims.

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“The district court is given broad discretion in supervising the pretrial phase of

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litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation

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and internal quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified

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only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may

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be modified ‘if it cannot reasonably be met despite the diligence of the party seeking the

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extension.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(quoting Johnson., 975 F.2d at 607).
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On June 24, 2011, the court set a discovery deadline for October 14, 2011, and a

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pretrial motions deadline for January 6, 2012. However, on August 25, 2011, defendants filed a

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motion for judgment on the pleadings. Plaintiff’s opposition is not yet due, but plaintiff has filed

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a request for appointment of counsel.

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Good cause appearing, defendants’ motion to modify the scheduling order is

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granted. The June 24, 2011 scheduling order is vacated. The court will issue a new scheduling

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order, if appropriate, following resolution of the defendants’ motion for judgment on the

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pleadings.

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Plaintiff has requested the 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 court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). 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). In the present case, the court

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does not find the required exceptional circumstances. Therefore, plaintiff’s motion for the

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appointment of counsel is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ September 7, 2011 motion to modify the scheduling order (dkt.

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no. 40) is granted;

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2. The June 24, 2011 scheduling order (dkt. no. 33) is vacated; and

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3. Plaintiff’s September 1, 2011 motion for appointment of counsel (dkt. no. 39)

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is denied.

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DATED: September 12, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jime2943.vac

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