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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BENJAMIN ELLIS, No. CIV S-04-1483-LKK-CMK-P

Plaintiff, 

vs. ORDER

ALBONICO, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s document entitled “Request for

Extension of Time to Conduct Discovery and File any Motions Necessary to Compel

Discovery,” filed on December 27, 2005. In the document, plaintiff notes that, pursuant to the

court’s August 4, 2005, scheduling order, the discovery cut-off date in this case was November

18, 2005. This date included hearing on any motions necessary to compel discovery. Plaintiff

states that he served discovery requests on defendants on October 19, 2005, and November 9,

2005. It appears from plaintiff’s document that he seeks an extension of time discovery cut-off

in order to file motions to compel. Plaintiff document will, therefore, be construed as a motion

for modification of the scheduling order.

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Good cause appearing therefor, plaintiff’s motion will be granted, but only to the

extent of allowing plaintiff to file a motion to compel, if necessary, as to the October 19, 2005,

and/or November 9, 2005, discovery requests plaintiff identifies as currently outstanding. This

extension does not operate to allow any new discovery requests to be served by either party. 

Pursuant to the order issued concurrently herewith, the time for defendants to respond to

outstanding discovery requests has been extended to January 27, 2006. Therefore, the court will

extend the discovery cut-off to February 27, 2006, for filing and hearing of any motion to

compel related to the two currently outstanding discovery requests. 

A review of the docket reflects that the current dispositive motion cut-off date is

January 13, 2006. In light of the extension of discovery outlined above, the court will sua sponte

re-set the dispositive motion filing deadline to March 14, 2006. All other aspects of the court’s

August 4, 2005, scheduling order remain in effect. 

Also pending before the court is plaintiff’s motion for appointment of counsel

(Doc. 24), filed on December 16, 2005. The United States Supreme Court has ruled that district

courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. See

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). See 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. 

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s request for modification of the scheduling order is granted;

2. The discovery cut-off date is extended to February 27, 2006, for the

limited purpose identified above; 

3. The dispositive motion cut-off date is extended, sua sponte, to March 14,

2006; 

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4. All other aspects of the court’s August 4, 2005, scheduling order remain in

effect; and

5. Plaintiff’s motion for appointment of counsel is denied. 

DATED: January 9, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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