Benyamini v. Swett et al

Filing 41

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/2/2015 ORDERING that the hearing on defendants' 37 motion for summary judgment is CONTINUED to 5/20/2015 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan; pl aintiff shall file an opposition to the motion, or a statement of non-opposition thereto, no later than 5/4/2015; defendants may file a reply on or before 5/11/2015; the 3/11/2015 order to show cause is DISCHARGED; and the Clerk shall terminate docket entry number 39 . (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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No. 2:13-cv-735-KJM-EFB P

Plaintiff,
v.

ORDER TO SHOW CAUSE

M. SWETT, et al.,
Defendants.

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On February 13, 2015, defendants filed a motion for summary judgment on the ground

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that plaintiff failed to properly exhaust administrative remedies prior to filing suit. ECF No. 37.

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Defendants noticed the hearing on their motion for March 18, 2015. Id. After plaintiff failed to

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timely respond to the motion, the court ordered plaintiff to show cause why he should not be

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sanctioned. ECF No. 38. Before that order was served on plaintiff, he requested an extension of

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time to oppose the motion. ECF No. 39. Thereafter, plaintiff filed a response to the order to

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show cause. ECF No. 40.

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Plaintiff seeks a 60-day extension of time to respond to defendants’ motion on the grounds

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that his disability and medications interfere with his ability to prepare an opposition, he is low-

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income, unskilled in the law, and because he is busy with school and other cases he is litigating

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pro se. Plaintiff’s request for a 60-day extension of time is dated March 5, 2015. ECF No. 39 at

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6. A 60-day extension of time results in a May 4, 2015 filing deadline. Plaintiff’s request for an
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extension of time is granted.1 Plaintiff is cautioned, however, that the court is not inclined to

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extend this time any further. Plaintiff demonstrates through his request for an extension of time

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and his response to the order to show cause that, despite his circumstances, he is capable of

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responding to defendants’ motion within the time provided, as each of those filings includes

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substantive arguments that are responsive to defendants’ motion for summary judgment.

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Plaintiff also requests the appointment of counsel. District courts lack authority to require

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counsel to represent indigent plaintiffs in section 1983 cases. Mallard v. United States Dist.

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

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The hearing on defendants’ motion for summary judgment is continued to May 20,

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2015 at 10:00 a.m. in Courtroom No. 8.

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2. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,

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no later than May 4, 2015. Failure of plaintiff to file an opposition to the motion will be deemed

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a statement of non-opposition thereto, and may result in a recommendation that this action be

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dismissed for lack of prosecution and/or for failure to comply with court orders and this court’s

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Local Rules. See Fed. R. Civ. P. 41(b).

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3. Defendants may file a reply to plaintiff’s opposition, if any, on or before May 11,

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2015.

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/////

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In light of plaintiff’s request for an extension of time, the order to show cause is
discharged.
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4. The March 11, 2015 order to show cause (ECF No. 38) is discharged.

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5. The Clerk of the Court shall terminate docket entry number 39.

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DATED: April 2, 2015.

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