(PC) Dalke v. King ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION TO 13 v. ) STAY THE PROCEEDINGS, AND DENYING MOTINO FOR APPOINTMENT OF COUNSEL, 14 KING CLARK, et al., ) WITHOUT PREJUDICE ) 15 Defendants. ) (ECF Nos. 42, 43) ) 16 ) ) 17 ) 18 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion to stay the proceedings and request for 21 appointment of counsel, filed December 7, 2020. (ECF Nos. 42, 43.) Plaintiff’s requests must be 22 denied. 23 I. 24 DISCUSSION 25 A. Motion for Appointment of Counsel 26 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 27 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 28 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 1 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 2 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 3 1525. 4 Without a reasonable method of securing and compensating counsel, the court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 7 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 8 legal issues involved.” Id. (internal quotation marks and citations omitted). 9 In the present case, the Court does not find the required exceptional circumstances. Plaintiff 10 seeks appointment of counsel in order to obtain certain documents by way of discovery. Even if it 11 assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 12 proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 13 almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and 14 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 15 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 16 further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 17 facts necessary to support the case.”) The test is whether exception circumstances exist and here, they 18 do not. ). Circumstances common to most prisoners, such as lack of legal education and limited law 19 library access, do not establish exceptional circumstances that would warrant a request for voluntary 20 assistance of counsel. In addition, although a pro se litigant may be better served with the assistance 21 of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims 22 against the relative complexity of the matter,” the “exceptional circumstances” which might require 23 the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of 24 discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact 25 that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing 26 of expert testimony.”) Accordingly, Plaintiff’s motion for the appointment of counsel is denied, 27 without prejudice. 28 /// 1 B. Motion to Stay Proceedings 2 Plaintiff seeks to stay the proceedings “to continue my case at Covid and lack of transfer due to 3 covid need a lawyer’s assistance or paral[]egal on discovery and interrogatories for the next couple of 4 steps are more important th[a]n the abuse I’ve suffered to get to this point.” (ECF No. 43 at 1.) 5 The district court “has broad discretion to stay proceedings as an incident to its power to 6 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North American 7 Co., 299 U.S. 248, 254 (1936)). “Generally, stays should not be indefinite in nature.” Dependable 8 Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066–67 (9th Cir. 2007). If a stay is 9 especially long or its term is indefinite, a greater showing is required to justify it. Yong v. I.N.S., 208 10 F.3d 1116, 1119 (9th Cir. 2000). The party seeking the stay bears the burden of establishing the need 11 to stay the action. Clinton, 520 U.S. at 708. 12 Here, Plaintiff has not met his burden in establishing the necessity of a stay. Clinton, 520 U.S. 13 at 708. In contrast, Plaintiff merely requests a stay to allow time to conduct discovery. However, 14 discovery has not yet opened in this action as Defendants response is not yet due. After an answer to 15 the complaint is filed, the Court will open discovery for a period of eight months. In addition, there 16 are currently no pending deadlines for which Plaintiff must comply. If Plaintiff requires additional 17 time to meet a specific deadline in the future, he may file a motion setting forth good cause for the 18 extension of that deadline. Thus, there is no basis to warrant a stay of the proceedings, and Plaintiff’s 19 motion must be denied. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Il. 2 ORDER 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff's motion to stay the proceedings is denied; and 5 2. Plaintiff's motion for appointment of counsel is denied, without prejudice. 6 7 8 || IT IS SO ORDERED. Al oe ? || Dated: _ December 8, 2020 OF 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28