Quair v. Gertz

Filing 54

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/01/13 vacating 52 FINDINGS AND RECOMMENDATIONS and denying 53 Motion to Appoint Counsel. (Plummer, 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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SAMMY R. QUAIR, JR.,

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Plaintiff,

No. 2:11-cv-2293 JAM CKD P

Defendant.

ORDER

vs.
GERTZ,

/
On February 1, 2013, the court issued findings and a recommendation that this

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action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure due to

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plaintiff’s failure to comply with an order directing him to file an opposition or statement of non-

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opposition to defendant’s September 12, 2012 motion for summary judgment. Plaintiff was

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granted fourteen days to file objections to the findings and recommendations. (Dkt. No. 52.)

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Plaintiff did not timely file objections. However, on February 25, 2013, plaintiff

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filed objections stating that he had been recently hospitalized. In opposition to summary

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judgment, he submitted five inmate request forms from July 2010 that are relevant to this action;

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indeed, defendant filed these forms along with his motion for summary judgment. (See Dkt.

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Nos. 44-4, 44-9, 44-10, 44-11, 44-12.) Plaintiff asserts that “with these new request slips, there’s

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no possible way at all that I will not win my case at trial.” (Dkt. No. 52 at 2.) The court
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construes plaintiff’s February 25, 2013 filing as his opposition to summary judgment and will

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vacate its February 1, 2013 recommendation of dismissal.

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

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

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the 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). In the present case, the

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

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appointment of counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 1, 2013 (Dkt. No. 52) are

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hereby vacated; and

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2. Plaintiff’s February 25, 2013 motion to appoint counsel (Dkt. No. 53) is
denied.
Dated: March 1, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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quai2293.vac

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