United States District Court, S.D. California
LOFOFORA EVA CONTRERAZ also known as Mike Contreraz, Plaintiff,
KEN SALAZAR, Secretary of the United States Department of Interior; M. SHARON BLACKWELL, Deputy Commissioner of Indian Affairs; Does 1, Acting Deputy Assistant Secretary, Policy and Economic Development, and DOES 1-10, inclusive, Defendants.
ORDER GRANTING PLAINTIFF'S EX PARTE MOTION TO STAY PROCEEDINGS AND DENYING PLAINTIFF'S RENEWED MOTION FOR COUNSEL
[Dkt. No. 64.]
GONZALO P. CURIEL, District Judge.
Before the Court is Plaintiff's ex parte motion to stay proceedings and renewed motion for counsel. (Dkt. No. 64.) Based on the reasoning below, the Court GRANTS Plaintiff's motion to stay the proceedings and DENIES Plaintiff's renewed motion for counsel.
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a complaint on February 7, 2011. (Dkt. No. 1.) On July 21, 2011, Plaintiff filed a first amended complaint alleging causes of action pursuant to the Administrative Procedures Act ("APA"). (Dkt. No. 9.) On August 9, 2012, the Court granted in part and denied in part Defendant's motion to dismiss Plaintiff's first amended complaint. (Dkt. No. 40.) The Court granted Plaintiff 30 days leave to file a second amended complaint. (Id.) Plaintiff did not file a second amended complaint within the time allotted.
On October 22, 2012, the case was transferred to the undersigned judge. (Dkt. No. 42.) On April 15, 2013, the Court set an order to show hearing for dismissal for want of prosecution pursuant to Local Civil Rule 41.1. (Dkt. No. 43.) A hearing was held on May 17, 2013 with no appearances or response to the order to show cause. (Dkt. No. 44.) The Court ordered the case dismissed without prejudice for want of prosecution. (Id.) On June 4, 2013, Plaintiff filed a motion to vacate judgment and ex parte motion for a stay. (Dkt. No. 47.) Good cause showing, the Court granted her motion to vacate judgment and ex parte motion to stay the case for 90 days and granted Plaintiff leave to file a second amended complaint. (Dkt. No. 48.)
Plaintiff was given until October 1, 2013 to file a second amended complaint. (Id.) Plaintiff did not file a second amended complaint but instead filed a motion to stay the proceedings, motion to appoint counsel and motion for permission to use funds to hire an attorney on October 1, 2013. (Dkt. No. 52.) On October 30, 2013, the Court granted Plaintiff's motion to stay proceedings for sixty days and denied Plaintiff's motion to appoint counsel and motion for permission to use withheld funds. (Dkt. No. 58.)
On December 30, 2013, Defendants filed a motion to dismiss. (Dkt. No. 60.) Plaintiff did not file an opposition pursuant to the Court's order setting briefing schedule. (Dkt. No. 61.) Instead, on February 12, 2014, Plaintiff filed the instant ex parte motion to stay and renewed motion to appoint counsel. (Dkt. No. 64.)
Plaintiff states that she was transferred to Kern Valley State Prison for enhanced mental health treatment on December 18, 2013. In her declaration, she states that for two weeks since December 18, 2013, she was confined to a mental health cell with no clothes or possessions except her underwear and took daily psychotropic medication. (Dkt. No. 64 at 3.) She has no access to the law library and her legal materials are in storage. (Id.) She states that her mental health housing will be reviewed in July 2014. (Id.) Due to her mental condition, she is unable to proceed with the case. (Id.) Therefore, she seeks a stay of her case until her mental health housing is reviewed and also seeks counsel based on her mental condition.
Due to Plaintiff's recent move to mental health housing and not having access to the law library and her legal materials, the Court GRANTS Plaintiff's motion for a stay of proceedings until August 1, 2014. At such time, Plaintiff shall provide the Court with an update as to her condition and housing status at the prison.
As part of her motion, she also filed a second request for appointment of counsel to assist her in prosecuting this action. In the Court's prior order denying Plaintiff's motion to appoint counsel, the Court concluded that Plaintiff has been litigating the case for over two years and has a sufficient grasp of the case and the legal issues involved. (Dkt. No. 58.) Moreover, the Court indicated that the case does not rise to the level of complexity required for appointment of counsel. (Id.)
"[T]here is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. , 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). However, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons under "exceptional circumstances." Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate [her] claims pro se in light of the complexity of the legal issues involved. Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id.
Plaintiff requests that counsel be appointed because she is unable to focus and concentrate on the issues in the case. Besides stating that she has been placed in mental health housing and was on psychotropic medication for a two week period, she has not provided substantial evidence of incompetency required to hold a competency hearing. See Allen v. Calderon , 408 F.3d 1150, 1153 (9th Cir. 2005) (a district court must hold a competency hearing "when substantial evidence of incompetence is presented.")
Further, Plaintiff has been able to understand and has been prosecuting this case since 2011 when the complaint was filed. Her complaint survived a motion to dismiss. In her instant motion, Plaintiff noted that in 2012-2013, although she does not specific which months, she was placed in mental health housing. However, during that time, she was able to prosecute her case. As such, Plaintiff's renewed request for appointment of counsel on the basis of not being able to focus and concentrate falls short in ...