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Lees v. Felker

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


September 30, 2009

ALEXANDER LEES, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. §1983. On September 1, 2009, this court recommended that defendants' motion to dismiss be granted in part and denied in part. On September 9, 2009, defendants filed their consent to this court's jurisdiction and as plaintiff had previously consented, the District Judge referred the case to this court and this court accepted the referral. Docket No. 74.

Defendants have asked leave to file a renewed motion to dismiss and plaintiff has asked that any dismissal of claims be without prejudice. Both requests are appropriate.

In addition, 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.

IT IS THEREFORE ORDERED that:

1. Plaintiff's motion for the appointment of counsel (docket no. 77) is denied;

2. Defendants' motion to dismiss for failure to exhaust administrative remedies (docket no. 49) is granted as to Kirkland, Spears, Audette and Bortle; granted as to Brewer to the extent the complaint alleges he refused to summon medical assistance on 8/3/2007; and otherwise denied without prejudice;

3. Defendants may file a renewed motion to dismiss within thirty days of the date of this order. Plaintiff's opposition is due thirty days after the motion is filed. Defendants' reply, if any, is due within fifteen days the opposition is filed.

20090930

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