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Mitchell v. Perez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 26, 2008

JOSEPH MITCHELL, PLAINTIFF,
v.
MARGARITA A. PEREZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

On July 31, 2006, the Magistrate Judge issued an order denying plaintiff's July 12, 2006, request for the appointment of counsel. On December 1, 2006, plaintiff filed a request for reconsideration of that order. Local Rule 72-303(b), states "rulings by Magistrate Judges shall be final if no reconsideration thereof is sought from the Court within ten court days . . . from the date of service of the ruling on the parties." E.D. Local Rule 72-303(b). To the extent that plaintiff's request is one for reconsideration of the magistrate judge's order of July 31 , 2006, it is untimely.

Alternatively, to the extent that plaintiff simply seeks to renew his request for appointment of counsel, as plaintiff has been previously informed, the United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request, construed as a renewed motion for the appointment of counsel, will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that: 1. To the extent, plaintiff's December 1, 2006, request is one for reconsideration of the July 12, 2006, order denying plaintiff's request for appointment of counsel, it is denied as untimely;

2. Alternatively, to the extent that plaintiff seeks to renew his request for appointment of counsel, in his December 1, 2006, filing, his request for appointment of counsel is denied.

20080826

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