United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action. Plaintiff has once again moved to "continue" his case or alternatively for appointment of counsel.
As plaintiff has been previously informed, 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 district 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).
The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. (9th Cir. 2009) (quoting Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986)); Weygandt v. Look , 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.
The court has found that the instant complaint states a cognizable claim for relief on plaintiff's claims of the use of excessive force by defendant West Sacramento Police Officers on two separate occasions. In the denial of plaintiff's prior request for appointment of counsel, see order filed on April 3, 2014, the undersigned noted that while it appeared that plaintiff had a reasonable chance of succeeding on his claims, the court was not able to evaluate his likelihood of success on the merits at this point. It was also noted that the legal issues did not appear to be complex. Plaintiff's desire to have counsel while being deposed did not warrant appointment of counsel. Plaintiff's reference to being on psychotropic medication was found not to constitute an exceptional circumstance for an inmate. In his present request, plaintiff also states that he is deaf in his left ear. Such an infirmity does not constitute an exceptional circumstance. Plaintiff's repeated request for appointment of counsel does not meet his burden to demonstrate exceptional circumstances.
Plaintiff sought in the alternative to have his case "postponed." Plaintiff has been informed that having brought this action, he is obligated to litigate it, and that defendants are entitled to discovery including the taking of plaintiff's deposition. See Order at ECF No. 30. He has been told that he may bring a motion for a stay should he believe he had a sound basis to seek a stay of proceedings. However, plaintiff's request for a stay of his case until he is released from prison is unavailing. Plaintiff remains free to dismiss his case should he no longer wish to proceed. In the instant motion, plaintiff's main concern still appears to be his scheduled May 21, 2014 deposition. Plaintiff claims he is impeded from proceeding on this case by the fact of his incarceration. See Motion, ECF No. 31. Plaintiff's imprisonment, however, is not a sufficient basis for a stay of any kind in this case, particularly an open-ended stay. Although the district court does have the inherent power to impose a stay in order to control its own docket, Mediterranean Enterprises, Inc. v. Ssangyong Corp. , 708 F.2d 1458, 1465 (9th Cir.1983), the present circumstances do not warrant such action. Accordingly, the undersigned will recommend denial of plaintiff's request for a stay.
IT IS HEREBY ORDERED that plaintiff's motion for the appointment of counsel (ECF No. 31) is denied.
Further, IT IS RECOMMENDED that plaintiff's motion for a stay of proceedings in the instant case (ECF No. 31) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to ...