Benyamini v. Manjuano et al

Filing 57

ORDER DENYING 56 Motion to Appoint Counsel and to Stay Proceedings; Order Directing Clerk's Office to Prepare USM-285 Forms and Summonses on Plaintiff's Behalf signed by Magistrate Judge Gary S. Austin on 9/10/2009. (Figueroa, O)

Download PDF
1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 (Doc. 53) 15 16 Plaintiff Robert Benyamini is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's motion for 18 the appointment of counsel and to stay these proceedings, filed on June 18, 2009. 19 I. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 21 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 22 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 24 circumstances the Court may request the voluntary assistance of counsel pursuant to section 25 1915(e)(1). Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 1 Motion for Counsel / v. (Doc. 56) DEBBIE MANJUANO, et al., Defendants. ORDER DIRECTING CLERK'S OFFICE TO PREPARE USM-285 FORMS AND SUMMONSES ON PLAINTIFF'S BEHALF ROBERT BENYAMINI, Plaintiff, CASE NO. 1:06-cv-01096-AWI-GSA PC ORDER DENYING MOTION TO APPOINT COUNSEL AND TO STAY PROCEEDINGS UNITED STATES DISTRICT COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "exceptional circumstances exist, the district court must evaluate both the likelihood of success of 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 citations omitted). In the present case, the Court does not find the required exceptional circumstances. Even if it is 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. Further, at this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id. Therefore, Plaintiff's motion for counsel is denied. II. Motion to Stay Proceedings Plaintiff seeks to stay these proceedings on the ground that he has not consented to Magistrate Judge jurisdiction and "no judge can move the case forward beyond the screening of the claim," as the undersigned is "attempting to [do]." (Doc. 56, p. 2.) Plaintiff's contention is without merit. On May 26, 2009, Chief United States District Judge Anthony W. Ishii dismissed certain claims and parties from this action and ordered service of the third amended complaint on the remaining claims. Plaintiff's lack of consent is irrelevant because the district judge assigned to this case issued the screening order in question, and it is within the authority of the undersigned to direct Plaintiff to submit the appropriate documents so that service of process may be initiated. 28 U.S.C. § 636(b)(1)(A); Local Rule 72-302 (c)(17). Plaintiff's motion to stay is denied, and the Clerk's Office will be directed to complete the service documents on Plaintiff's behalf so that service of process may be initiated. III. Order For the reasons set forth herein, it is HEREBY ORDERED that: 1. 2. /// /// 2 Plaintiff's motion for the appointment of counsel, filed June 18, 2009, is DENIED; Plaintiff's motion to stay the proceedings, filed June 18, 2009, is DENIED; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Clerk's Office is DIRECTED to fill out the four summonses and four USM-285 forms on Plaintiff's behalf, in accordance with the Court's order filed on May 27, 2009. IT IS SO ORDERED. Dated: 6i0kij September 10, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?