Opinion
No. CIV S-06-2876 GEB KJM P.
February 1, 2008
ORDER
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He has filed a request for an extension of time in which to file a sur-reply to defendants' reply to his opposition to a motion to dismiss, but then filed such a document shortly after requesting additional time. Plaintiff has also filed a request for the entry of default and a request for the appointment of counsel.
When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence. El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003). Defendants' reply addressed the argument in plaintiff's opposition; it raised no new theories. Accordingly, plaintiff's "reply to defendants' reply" will be stricken and his request for an extension of time will be denied.
Plaintiff's request for the entry of default is based on what he perceives to be defendants' late filing of their reply to his opposition. Even if the late filing of a response constituted grounds for the entry of default, defendants' reply was timely filed on December 11, 2007.
On January 16, 2008, plaintiff filed his fourth request for the appointment of counsel. Plaintiff's previous requests were filed on April 23, 2007, September 10, 2007, and November 19, 2007. All requests were denied. In light of those orders, and the court's determination that there has been no material change in the relevant factors, the instant motion is also denied.
IT IS THEREFORE ORDERED that:
1. Plaintiff's January 14, 2008 request for the entry of default (docket no. 43) is denied;
2. Plaintiff's January 16, 2008 request for an extension of time (docket no. 44) is denied;
3. Plaintiff's January 16, 2008 request for the appointment of counsel (docket no. 45) is denied; and
4. Plaintiff's January 22, 2008 sur-reply (docket no. 46) is stricken from the record.