Saddozai v. Carwithen

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA SHIKEB SADDOZAI, 11 Case No. 21-01352 BLF (PR) Plaintiff, 12 ORDER GRANTING EXTENSION v. OF TIME TO FILE NEW 13 OPPOSITION; RESETTING BRIEFING DEADLINES; DENYING 14 A. CARWITHEN, et al., MOTION FOR APPOINTMENT OF COUNSEL 15 Defendants. (Docket Nos. 28, 40) 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983, based on events that took place at Salinas Valley State Prison (“SVSP”) where he is currently confined. Dkt. No. 1. On December 1, 2021, the Court found the amended complaint, Dkt. No. 17, stated a cognizable Eighth Amendment claim against Defendant A. Carwithen, and ordered the matter served. Dkt. No. 20.1 On February 3, 2022, Defendant filed a motion to revoke Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g). Dkt. No. 25. Plaintiff filed an opposition on March 14, 2022, which is untimely, since it was filed after the twenty-eight days to file an opposition had expired. Dkt. No. 37; see Dkt. No. 20 at 6.

1 Defendant filed a motion for an extension of time to file a reply. Dkt. No. 40.

2 Defendant construes Plaintiff’s late opposition as including a request to file a new opposition and does not oppose the request. Dkt. No. 40 at 2, citing Dkt. No. 37 at 2. The Court also notes that on March 10, 2022, Plaintiff filed a letter describing lack of access to the law library that was making it difficult for him to litigate this matter. Dkt. No. 34. It also appears that Plaintiff is not satisfied that the opposition he filed is complete. Dkt. No. 37 at 2. Good cause appearing and with Defendant’s non-opposition, the Court will grant Plaintiff an opportunity to file a new opposition to supersede the one that has already been filed. Therefore, Defendant’s motion for an extension of time to file a reply is also granted. The new briefing schedule is set forth below. See infra at 3.

11 Plaintiff has filed a second motion for appointment of counsel. Dkt. No. 28. This motion is nearly identical to the first motion he filed, including the exhibits, Dkt. No. 7, which was denied for lack of exceptional circumstances. Dkt. No. 10 at 9-10. Plaintiff sets forth nothing new in this second motion for this Court to reconsider its first denial. Id. Accordingly, this second motion is DENIED for the same reasons set forth in the previous order denying appointment of counsel, i.e., for lack of exceptional circumstances. Id.; see Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Nor has Plaintiff submitted any new evidence to raise a substantial question regarding his competence for this Court to reconsider appointing a guardian ad litem under Rule 17(c) of the Federal Rules of Civil Procedure. Dkt. No. 10 at 10-11. Accordingly, to the extent this second motion renews Plaintiff’s request for a guardian ad litem, the motion is DENIED.

25 CONCLUSION 26 For the foregoing reasons, the Court orders as follows: || file a new opposition to Defendant’s motion to revoke Plaintiff's in forma pauperis status.

2 || If Plaintiff wishes to, he may file a new opposition within forty-five (45) days from the || date this order is filed, along with supporting documents. If Plaintiff files a new || opposition, his current opposition and any supporting documents, Dkt. Nos. 35-38 will be || stricken from the record. If Plaintiff fails to file a new opposition in the time provided, the || matter will proceed on his current opposition.

7 2. Defendant’s reply shall be filed no later than fourteen (14) days from the || date Plaintiff's new opposition is filed or is due, whichever is later.

9 3. Plaintiff's motion for appointment of counsel is DENIED. Dkt. No. 28.

10 This order terminates Docket Nos. 28 and 40.

11 IT IS SO ORDERED.

3 12 || Dated: — March 24, 2022 BETH TABSON FREEMAN 13 United States District Judge o

Oo Z 18 25 Order Granting EOT to file Opp; Resetting Briefing; Deny Atty PRO-SE\BLF\CR.21\01352Saddozai_eot-opp,reply&atty