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Bernabe v. Schwartz

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


October 13, 2009

EDGAR BERNABE, PLAINTIFF,
v.
TERESA A. SCHWARTZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On June 1, 2009, the undersigned issued findings and recommendations recommending this action be dismissed for plaintiff's failure to comply with court orders and failure to respond to discovery requests (Doc. 96). Plaintiff filed objections to those findings and recommendations (Doc. 97).

While it is not clear, Plaintiff appears to claim in his objections that he has in fact complied with the court's order requiring his response to the defendants' discovery requests (mentioning that he sent some documents, and possibly answered some of the interrogatories and/or deposition questions). He also again requested additional time to respond to the interrogatories, up to July 20, 2009. It is unclear to the undersigned whether Plaintiff has complied with the court's orders that he respond to the outstanding discovery requests, or if he is again requesting additional time to do so.*fn1

To the extent Plaintiff is requesting additional time to respond to the discovery requests, that request has previously been denied. The court set a final deadline for the responses to be submitted to the defendants of May 13, 2009. As of May 26, 2009, the defendants advised the court that no responses had been received. Plaintiff has now had several more months beyond what his request was in order to comply. As stated above, there is some indication in his objections that perhaps he has in fact submitted his responses to the outstanding discovery requests. As such, the court requests a response from the defendants as to whether in fact responses to their discovery requests, especially their interrogatories, have been received.

Plaintiff has also again requested the appointment of counsel. Plaintiff has requested the appointment of counsel several times, and has previously been informed that only in exceptional circumstances may a district court request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). As previously noted, the court does not at this time find the required exceptional circumstances.

Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs's request for additional time to respond to the discovery requests is denied;

2. Plaintiff's request for the appointment of counsel is denied; and

3. Defendants are requested to file a response to Plaintiff's objections, within 15 days of the date of service of this order, informing the court whether they have received any discovery responses from Plaintiff since May 26, 2009.


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