IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 1, 2011
RANDALL HOUSEMAN, PLAINTIFF,
CHRISTOPHER SMITH, ET AL., DEFENDANTS.
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.
Plaintiff has also requested that if his motion for appointment of counsel is denied, that this action be dismissed without prejudice so that he may re-file it at a later date. Plaintiff is advised that the court can dismiss this action without prejudice pursuant to Rule 41(a)(2). However, plaintiff is cautioned that a two-year statute of limitations applies in § 1983 suits under California law. See Maldonado v. Harris, 370 F.3d 945, 954--55 (9th Cir.2004). In addition, California prisoners, serving a term of less than for life, are entitled to two-years of statutory tolling pursuant to California Code of Civil Procedure § 352.1(a). Finally, the statute of limitations is tolled while a prisoner completes the administrative exhaustion process with respect to his claims. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Therefore, the court will order plaintiff to inform the court whether he still wishes to voluntarily dismiss this action.*fn1
Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's April 27, 2011 request for the appointment of counsel (Doc. No. 18) is denied; and 2. Within fourteen days from the service of this order, plaintiff shall inform the court as to whether he requests voluntary dismissal of this action.