United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION TO STAY THE
PROCEEDINGS, DENYING MOTION FOR APPOINTMENT OF COUNSEL, AND
DENYING REQUEST TO FURTHER EXTEND THE DEADLINES [ECF NO.
Kajauna Kenyatta Irvin is appearing pro se in this civil
rights action pursuant to 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). The case was removed from state court
on October 14, 2010.
before the Court is Plaintiff's motion to stay the
proceedings and for appointment of counsel, filed June 13,
Motion for Appointment of Counsel
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), and the court cannot require any attorney to
represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). However, in
certain exceptional circumstances the court may request the
voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the 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.” Id. (internal quotation marks and
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 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. In the present case, the Court does not find the
required exceptional circumstances, as Plaintiff has failed
to demonstrate a likelihood of success on the merits or that
he is unable to sufficiently articulate his claims.
Accordingly, Plaintiff's motion for appointment of
counsel will be DENIED without prejudice.
Motion to Stay
District Court has broad discretion to stay proceedings as an
incident to its power to control its own docket.”
Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). In
determining whether to grant a motion to stay, “the
competing interests which will be affected by the granting or
refusal to grant a stay must be weighed.” Lockyer
v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005).
Court finds that a stay is not warranted in this case. While
Plaintiff may be suffering from certain physical limitation,
such limitations do not support the finding that Plaintiff is
unable to prosecute his case. The Court has previously
granted Plaintiff several previous extensions of time to
comply with the applicable deadlines, and there is no current
deadline pending. Indeed, the filing of the instant motion
indicates that Plaintiff is able to litigate this action.
Motion to Further Extend Deadline
extent Plaintiff seeks a further extension of time to oppose
Defendants' pending motion for summary judgment, his
request must be denied.
January 17, 2017, the Court denied Plaintiff's fourth
motion for an extension of time to file an opposition, noting
that Plaintiff has failed to demonstrate extraordinary
circumstances despite having been granted three prior
extensions. In the interest of justice and based on
Plaintiff's representation that his opposition would be
complete and mailed by January 23, 2017, the Court extended
the deadline to January 23, 2017.
almost five months later, Plaintiff has failed a motion to
stay and request for appointment of counsel claiming that was
unable to comply with the Court's deadline. Plaintiff
contends that he “was unable to meet the courts
1-23-2017 deadline [ECF No. 163] due to severe pain,
discomfort and mobility limitation of my right arm; affecting
my ability to write or even lift objects with my dominant
right hand. Additionally, I had no Law Library access from
1-23 through on or about 2/5 or 2/8/2017, and no one to
assist me or write or type my legal work.” (Mot. at
5:2-6.) Plaintiff contends that he was unable to respond to
Defendant Guthery's February 10, 2017, joinder in the
pending motion for summary judgment filed by the other
Defendants. Plaintiff submits that on April 24, 2017, he had
surgery to repair his rotator cuff and bicep, and on May 18,
2017, he was medically transferred to Nativadad Medical
Center due to an infection. (Id. at 5.) Plaintiff
was discharged on May 23, 2017. On June 2, 2017, Plaintiff
was transported to San Joaquin Hospital for follow-up.
stated, the firm deadline to respond to Defendant's
pending motion for summary judgment expired on January 23,
2017, which provided Plaintiff with over eighth months to
respond to the motion. In addition, any opposition to
Defendant Guthery's joinder motion was due on or before
March 3, 2017. See Local Rule 230(1) ...