(PC) Houston v. Ngai ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOUSTON, No. 2:20-cv-1051 KJM DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 NGAI, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants failed to adequately respond to his 19 mental health issues in violation of the Eighth Amendment. Presently before the court is 20 plaintiff’s motion to appoint counsel (ECF No. 38) and his motion for stay and settlement 21 conference (ECF No. 39). 22 I. Background 23 On October 1, 2021, defendants filed a motion to compel and for sanctions because 24 plaintiff failed to appear for his deposition. (ECF No. 34.) Defendants previously sought and 25 obtained an extension of time to take plaintiff’s deposition because they had difficulty contacting 26 him following his release from custody. However, plaintiff’s most recent notice of change of 27 address and the instant motion indicates that he is currently incarcerated at the Sacramento 28 County Main Jail. (ECF Nos. 38, 39.) 1 Plaintiff has not responded to defendants’ motion to compel and for sanctions (ECF No. 2 34) or the court’s order directing plaintiff to respond to defendants’ motion (ECF No. 35). In 3 light of plaintiff’s pro se status and his indication that he has not received recent orders (ECF No. 4 38), the court will grant plaintiff one final opportunity to file a response to defendants’ motion. 5 Additionally, the court will instruct defendants to send a copy of their motion to compel and for 6 sanctions at his updated address. 7 II. Motion to Appoint Counsel 8 Plaintiff has requested the appointment of counsel. (ECF No. 38.) In support of his 9 motion plaintiff states that because restrictions related to the COVID-19 pandemic he cannot go 10 to the law library and does not have access to legal materials. (Id.) 11 The United States Supreme Court has ruled that district courts lack authority to require 12 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 13 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 14 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 15 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 16 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 17 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 18 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 19 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 20 common to most prisoners, such as lack of legal education and limited law library access, do not 21 establish exceptional circumstances that would warrant a request for voluntary assistance of 22 counsel. 23 In the present case, the court does not find the required exceptional circumstances. 24 Plaintiff’s lack of access to the law library and legal materials is nothing more than circumstances 25 common to most inmates. Therefore, the court will deny the motion to appoint counsel without 26 prejudice. Plaintiff may seek additional time to the extent he is unable to access the law library 27 due to pandemic related restrictions. 28 //// 1 III. Motion for Stay and Settlement Conference 2 Plaintiff has requested a stay of this action. (ECF No. 39.) The United States Supreme 3 Court has clearly indicated that “the power to stay proceedings is incidental to the power inherent 4 in every court to control the disposition of causes on its docket with economy of time and effort 5 for itself, for counsel, and for litigants. How this can best be done calls for the exercise of 6 judgment, which must weigh competing interest and maintain an even balance.” Landis v. North 7 American Co., 299 U.S. 248, 254-55 (1936). In this regard, “the proponent of the stay bears the 8 burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 706 (1997). 9 Plaintiff’s motion does not indicate why a stay of this action is necessary. Because 10 plaintiff has not provided any arguments in support of the stay, the court finds he has not met his 11 burden for establishing a stay is necessary. Accordingly, the court will recommend that 12 plaintiff’s motion for stay be denied. 13 Plaintiff’s filing also requests that the court schedule a settlement conference. (Id.) 14 Defendants previously moved to opt out of the Court’s post-screening ADR (Alternative Dispute 15 Resolution) project. (ECF No. 19.) There is nothing to indicate that defendants’ position on 16 settlement has changed since that time. However, in the event defendants express a willingness to 17 participate in a settlement conference the court will consider setting a settlement conference in 18 this action. 19 IV. Conclusion 20 For the reasons set forth above, IT IS HEREBY ORDERED that: 21 1. Within fourteen days of the date of this order defendants shall file and serve a copy of 22 their motion to compel and for sanctions (ECF No. 34) on plaintiff at his updated address. 23 2. Plaintiff shall file a response to defendants’ motion to compel and for sanctions within 24 thirty days of the date of service of defendants’ motion. 25 3. Plaintiff’s motion to appoint counsel (ECF No. 38) is denied without prejudice. 26 //// 27 //// 28 //// 1 IT IS HEREBY RECOMMENDED that plaintiff's motion for stay and settlement 2 || conference (ECF No. 39) be denied. 3 These findings and recommendations will be submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. The document should be captioned 7 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 || objections shall be filed and served within seven days after service of the objections. The parties 9 | are advised that failure to file objections within the specified time may result in waiver of the 10 || right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991). 11 |} Dated: February 4, 2022 13 14 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 DB:12 22 || DB/DB Prisoner Inbox/Civil Rights/R/hous1051.var 23 24 25 26 27 28