Allen v. Walker, et al

Filing 50

ORDER signed by Magistrate Judge John F. Moulds on 11/14/2012 ORDERING that plaintiff's 45 motion for psychiatric examination is DENIED; plaintiff's 47 motion for an extension of time is DENIED; plaintiff's 10/31/2012 opposition to defendants' motion for summary judgment is DEEMED TIMELY FILED; and plaintiff's 46 and 49 motions for appointment of counsel are DENIED. (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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TROY B. ALLEN,
Plaintiff,

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vs.
WARDEN JAMES WALKER, et al.,
Defendants.

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ORDER
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No. 2:10-cv-3032 GEB JFM (PC)

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
42 U.S.C. § 1983. Several matters are pending before the court.
On October 15, 2012, plaintiff filed motions for a court-ordered psychiatric

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examination, for appointment of counsel, and for a forty-five day extension of time to file an

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opposition to defendants’ September 14, 2012 motion for summary judgment. On October 31,

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2012, plaintiff filed an opposition to defendants’ motion for summary judgment. Good cause

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appearing, plaintiff’s motion for extension of time will be granted and plaintiff’s opposition

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deemed timely filed.

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In his motion for psychiatric examination, plaintiff asserts that he is receiving

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psychiatric treatment and psychotropic medication at Salinas Valley State Prison, that he is a

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member of the mental health program at the correctional clinical case management system
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(CCCMS) level, and that he is not competent to proceed without appointment of counsel.

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Motion for Psychiatrist Examination, filed October 15, 2012, at 1. Plaintiff has filed no evidence

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in support of his assertion that his mental health status renders him incompetent to proceed with

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this action. For that reason, plaintiff’s motion for a psychiatric examination will be denied.

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The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In

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the present case, the court does not find the required exceptional circumstances. Plaintiff’s

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motions for the appointment of counsel will therefore be denied.

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

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1. Plaintiff’s October 15, 2012 motion for psychiatric examination (Doc. No. 45)

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is denied;
2. Plaintiff’s October 15, 2012 motion for extension of time (Doc. No. 47) is

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denied;
3. Plaintiff’s October 31, 2012 opposition to defendants’ September 14, 2012

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motion for summary judgment is deemed timely filed; and
4. Plaintiff’s October 15, 2012 and October 31, 2012 motions for the appointment

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of counsel (Doc. Nos. 46 and 49) are denied.

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DATED: November 14, 2012.

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12/mp
alle3032.31

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