United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S FOURTH MOTION FOR
EXTENSION OF TIME TO FILE AN OPPOSITION TO DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT, AND DENYING MOTION TO STAY AND
REQUEST FOR APPOINTMENT OF COUNSEL [ECF NO. 104]
John Wesley Williams is appearing pro se in this civil rights
action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's fourth motion for an
extension of time to file an opposition to Defendants'
motion for summary judgment, filed on October 21, 2019.
Plaintiff also requests the Court stay the action and appoint
him counsel. Defendants filed a response to November 4, 2019.
continues to claim that he does not have access to his legal
property to file a response to Defendants' pending motion
for summary judgment. (ECF No. 104.) Plaintiff submits that
he has been without his property since February 2019.
(Id.) Most recently, on August 26, 2019, Plaintiff
was transferred from the California Medical Facility
Psychiatric Inpatient Program (PIP) to the California Health
Care Facility PIP where his property went from eight to six
boxes. (Williams Decl. ¶ 6, ECF No. 104.) On August 30,
2019, the PIP treatment team placed Plaintiff on the
“priority” list to receive property due to legal
obligations in this action, however, Plaintiff still has not
received his property. (Id.)
submit that the California Health Care Facility (CHCF) has
six boxes of Plaintiff's property. (Chen Decl. ¶ 1,
ECF No. 108.) Inmates housed on PIP at CHCF generally do not
get their property because they are a “treat and
return” and are only housed there temporarily. (Chen
Decl. ¶ 2.) Accordingly, Defendants do not oppose a
further extension of time for Plaintiff to file an opposition
to Defendants' motion for summary judgment while he does
not have access to his property. However, Defendants are
advised that if Plaintiff does not gain access to his
property within the time allotted by this order, they may
want to facilitate with the institution for Plaintiff to
receive access to his legal property in order to efficiently
file an opposition or the Court will entertain a request for
issuance of subpoenas.
do oppose a stay of the action and appointment of counsel.
“The 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, 707
(1997) (citing Landis v. North American Co., 299
U.S. 248, 254 (1936)). “The proponent of the stay bears
the burden of establishing its need.” Id. at
708. The following factors shall be considered when
determining if a stay is appropriate: (1) “the possible
damage which may result from the granting of a stay”;
(2) “the hardship or inequity which a party may suffer
in being required to go forward, ” and (3) “the
orderly course of justice, measured in terms of the
simplifying or complicating of issues, proof, and questions
of law which could be expected to result from a stay.”
Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th
Cir. 1972) (quoting CMAX, Inc. v. Hall, 300 F.2d 268
(9th Cir. 1962). The Court should “balance the length
of any stay against the strength of the justification given
for it.” Young v. I.N.S., 208 F.3d 1116, 1119
(9th Cir. 2000). Plaintiff has failed to demonstrate that a
stay is warranted because there is no showing of hardship or
inequity in being required to move forward. See Lockyer
v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005).
addition, the Court cannot appointment counsel in this
action. As Plaintiff was previously advised, he 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. Without 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
present case, the Court does not find the required
exceptional circumstances. Even if it assumed that Plaintiff
is not well versed in the law and that he has made serious
allegations which, if proved, would entitle him to relief,
his case is not exceptional. The Court is faced with similar
cases almost daily. While the Court recognizes that Plaintiff
is at a disadvantage due to his pro se status and his
incarceration, the test is not whether Plaintiff would
benefit from the appointment of counsel. See Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(“Most actions require development of further facts
during litigation and a pro se litigant will seldom be in a
position to investigate easily the facts necessary to support
the case.”) The test is whether exception circumstances
exist and here, they do not. There is insufficient evidence
before the Court to determine whether Plaintiff is likely to
succeed on the merits. Further, Plaintiff is able to
articulate his claim and litigate this action. Plaintiff has
filed numerous motions, as well as propounded multiple
discovery requests. In addition, Plaintiff has litigated
several other prior cases and is currently litigating two
pending actions. See Williams v. Riley, No.
2:16-cv-03002-JAM-DMC & Williams v. Alfaro, No.
1:17-cv-01310-AWI-JLT.) 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. Accordingly, Plaintiff's motion for the
appointment of counsel shall be denied, without prejudice.
on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff s fourth motion for an extension of time to file
an opposition is granted;
2. Plaintiff shall file an opposition within thirty
(30) days from the date of service;
3. Plaintiff s motion to stay the action is denied; and
4. Plaintiff s request for appointment of counsel is denied,