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Jackson v. Walker

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


January 26, 2010

CHRISTOPHER JACKSON, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.

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

ORDER

Plaintiff has requested a continuance of the trial in this matter, currently set for March 2, 2010, because, on January 15, 2010, he was transported to Manteca Doctor's Hospital for total knee replacement surgery, is left immobilized, is being medicated for severe pain, and will be, apparently for an indefinite period, undergoing physical therapy. Motion (docket # 164). In addition, plaintiff states that he will need two to four weeks after his return to prison to be able to access his stored legal material. Id. In view of these developments, the court finds good cause to continue the trial date, until July 27, 2010, and will, as well, continue all deadlines beyond the sixty days plaintiff has requested in an abundance of caution to give plaintiff ample time to recover and prepare. In addition, the undersigned's deputy courtroom clerk has coordinated the new trial date with both Judge Shubb's trial calendar and defendants' counsel's calendar.

By Order filed on January 15, 2010 (docket # 160), plaintiff was granted an extension of time until January 25, 2010, in which to file objections to the Pretrial Order, filed on December 23, 2009 (docket # 155), and to present his modified inmate witness list. In view of the trial continuance granted herein, plaintiff will now have a further extension, until May 21, 2010, to submit his objections and his modified inmate witness list. Defendants' timely objection, filed on January 5, 2010, to the Pretrial Order, seeking to extend the time to file objections to trial exhibits will be addressed after plaintiff has filed his objections, or the time for doing so has expired. In addition, the court notes that it is apparent from defendants' representation, as well as the plaintiff's, that efforts to negotiate further are likely to be futile. See docket # 156 and docket # 159.

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 motion for the appointment of counsel will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's January 21, 2010 (docket # 164), motion for a request for a continuance of the trial is granted; the current trial date of March 2, 2010, is hereby VACATED; and this case is re-set for trial before the Honorable William B. Shubb in Courtroom # 5 on July 27, 2010, at 9:00 a.m.

2. The writ of habeas corpus ad testificandum for plaintiff's appearance at trial, issued on January 21, 2010 (docket # 163), is hereby VACATED; a new writ will issue at the appropriate time;

3. The Clerk of the Court is directed to serve a copy of this Order, upon Warden James Walker, California State Prison, Sacramento, Prison Road, P.O. Box 290002, Represa, California, 95671-0002;

4. Plaintiff is granted a further extension of time, until May 21, 2010, to file his objections to the Pretrial Order, and his modified inmate witness list;

5. The parties' objections to the Pretrial Order will be addressed at the time plaintiff's files his objections, or the time for doing so has expired; it does appear, however, based on the parties' representations that a settlement conference would be futile; and

6. Plaintiff's January 15, 2010 (docket # 161) motion for the appointment of counsel is denied.

20100126

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