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Benyamini v. Kretch

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


July 1, 2009

ROBERT P. BENYAMINI, PLAINTIFF,
v.
W. KRETCH, ET AL., DEFENDANTS.

ORDER

On January 28, 2009, the court dismissed plaintiff's complaint and granted him thirty days leave to file an amended complaint. On March 4, 2009, the court granted plaintiff an additional ninety days to file an amended complaint. The ninety-day period expired, but plaintiff failed to file an amended complaint or otherwise respond to the court's order. Accordingly, on June 10, 2009, the court issued findings and recommendations, recommending dismissal of this action. Pending before the court are plaintiff's motions to "halt" all proceedings, for an additional ninety days to file an amended complaint, and for appointment of counsel.

A review of the instant action raises serious questions about whether plaintiff has diligently prosecuted this case. Plaintiff is strongly advised that the court possesses the discretionary authority to dismiss an action based on plaintiff's failure to diligently prosecute. Fed. R. Civ. P. 41(b). See also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). If plaintiff no longer wishes to proceed with this action, or if he believes he is unable to diligently prosecute this action at this time, he should file a request to voluntarily dismiss this action without prejudice. Otherwise, in the interests of justice, the court will grant plaintiff one final thirty-day extension of time to file an amended complaint. However, the court will not vacate its findings and recommendations at this time. If plaintiff fails to file a timely amended complaint, the court will forward the findings and recommendations to the assigned district judge.

Plaintiff has also requested appointment of counsel. As the court previously advised plaintiff, 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 district 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).

The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. In the present case, the court does not find the required exceptional circumstances.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's June 16, 2009 motions to halt all proceedings (Doc. Nos. 13 & 15) are denied;

2. Plaintiff's June 16, 2009 request for a ninety day extension of time (Doc. No. 13) is granted in part;

3. Within thirty days of the date of service of this order, plaintiff shall file an amended complaint. If plaintiff fails to file an amended complaint, the court will forward the findings and recommendations to the assigned district judge; and

4. Plaintiff's June 16, 2009 request for appointment of counsel (Doc. No. 15) is denied.

20090701

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