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O'Neal v. Voong

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


November 10, 2008

TERRELL O'NEAL, PLAINTIFF,
v.
SGT. VOONG, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

On July 15, 2008, defendants filed a motion to dismiss. Plaintiff did not file a timely opposition to the motion. Instead, on October 16, 2008, plaintiff filed a request for extension of time to file his opposition. In this pleading plaintiff states that on August 3, 2008, he was released from California State Prison-LA and has since been admitted to the Sacramento County Mental Health Center three times. On October 27, 2008, defendants filed an opposition to plaintiff's motion.

Good cause appearing, plaintiff's motion for extension of time is granted. Because it does not appear that plaintiff possesses a copy of the motion to dismiss, defendants are directed to re-serve plaintiff with the motion at his new address. Plaintiff is granted thirty days from the date of this order to file his opposition. No further requests for extension of time will be granted but for a showing of substantial cause. The court cannot delay resolution of this action indefinitely because of the issues raised in plaintiff's motion. If plaintiff is unable to prosecute this action, he may file a request to voluntarily dismiss this action.

On November 5, 2008, plaintiff filed a second request for extension of time. This motion is denied as duplicative of the October 16, 2008, motion.

Plaintiff has requested the appointment of counsel. 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 for the appointment of counsel will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's October 16, 2008, motion for extension of time (# 15) is granted; plaintiff is granted thirty days from the date of this order to file an opposition to defendants' motion to dismiss;

2. Within five days of the date of this order, defendants shall re-serve plaintiff with the motion to dismiss; defendants shall file proof of re-service within that time;

3. Plaintiff's October 16, 2008, motion for the appointment of counsel (#16) is denied;

4. Plaintiff's November 5, 2008, motion for extension of time is denied as unnecessary.

20081110

© 1992-2008 VersusLaw Inc.



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