Walker v. Ahern et al

Filing 26

ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE AND DENYING MOTION FOR APPOINTMENT OF COUNSEL (Illston, Susan) (Filed on 4/18/2013)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8
9
United States District Court
For the Northern District of California

10
11
12

No. C 12-6059 SI

VERNON L. WALKER,
Plaintiff,
v.
SHERIFF G.J. AHERN, CAPT. K. JACKSON,
LT. JAMES, DEPUTY TRACY, and DEPUTY
POSEDEL,

13

Defendants.

ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE AND
DENYING MOTION FOR
APPOINTMENT OF COUNSEL

/

14
15
On November 24, 2011, pro se plaintiff Walker filed an action against defendants in Superior
16
Court of California County of Alameda. On November 29, 2012, the case was removed to the U.S.
17
District Court for the Northern District of California. On January 8, 2013, defendants filed a motion
18
for judgment on the pleadings, asking the Court to dismiss the case because the complaint failed to
19
allege sufficient facts to support a claim. Plaintiff did not file an opposition to that motion, nor did
20
plaintiff request an extension of time. This was seemingly caused by the fact that plaintiff not updated
21
his address, as required by Local Rule 11. Accordingly, the Court ordered plaintiff to show cause why
22
the case should not be dismissed for failure to prosecute and failure to update his address. Docket No.
23
19.
24
On March 19, 2013, plaintiff wrote a letter to the Court explaining the circumstances of his
25
failure to prosecute and his new address. Docket No. 20. Accordingly, the Court set a new briefing
26
schedule. The Court ordered that plaintiff respond to the motion to dismiss by no later than April 5,
27
2013.
28

1

Plaintiff did not respond, nor did plaintiff file a motion for an extension of time. Instead, on the

2

day his response was due, plaintiff filed a motion for the appointment of an attorney and wrote a letter

3

requesting documents. The letter explains that plaintiff did not receive a copy of Docket No. 20.

4

However, Docket No. 20 is the letter that plaintiff himself wrote to the court. Therefore, the fact that

5

he had not received a copy is his own letter should not impact his ability to respond to defendant’s

6

motion..
Plaintiff also filed a motion for appointment of counsel to represent him in this action. A district

8

court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent civil

9

litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

10
United States District Court
For the Northern District of California

7

This requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff

11

to articulate his claims pro se in light of the complexity of the legal issues involved. See id. Neither

12

of these factors is dispositive and both must be viewed together before deciding on a request for counsel

13

under section 1915(e)(1). Here, exceptional circumstances requiring the appointment of counsel are not

14

evident. Plaintiff’s motion for appointment of counsel is therefore DENIED. (Docket No. 24).

15

Neither the letter nor the motion request additional time or respond to defendants’ motion.

16

Accordingly, plaintiff is ORDERED TO SHOW CAUSE in writing no later than May 6, 2013, why

17

this case should not be dismissed without prejudice for failure to prosecute. See Fed. R. Civ. Proc.

18

41(b). If plaintiff does not respond, this action will be dismissed without prejudice. The case

19

management conference scheduled for May 10, 2013 is VACATED.

20
21

IT IS SO ORDERED.

22
23

Dated: April 18, 2013
SUSAN ILLSTON
United States District Judge

24
25
26
27
28
2