Benyamini v. Manjuano et al
Filing
99
ORDER DENYING 98 Motion to Appoint Counsel and to Stay Proceedings; and ORDER GRANTING Extension of Time to File Objections to 97 Findings and Recommendations, signed by Magistrate Judge Gary S. Austin on 6/14/2011. Objections to F&R due within sixty (60) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT BENYAMINI,
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Plaintiff,
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vs.
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DEBBIE MANJUANO, et al.,
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Defendants.
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____________________________________)
1:06-cv-01096-AWI-GSA-PC
ORDER DENYING MOTION TO
APPOINT COUNSEL AND TO STAY
PROCEEDINGS
(Doc. 98.)
ORDER GRANTING EXTENSION OF
TIME TO FILE OBJECTIONS
SIXTY DAY DEADLINE
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I.
BACKGROUND
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Robert Benyamini (“plaintiff”) is a prisoner proceeding pro se in this civil rights action pursuant
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to 42 U.S.C. § 1983. Plaintiff filed the original complaint on August 21, 2006. (Doc. 1.) Pending
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before the Court is plaintiff’s motion for appointment of counsel, to stay these proceedings, and for an
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extension of time to file objections to the findings and recommendations. (Doc. 98.)
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II.
MOTION FOR COUNSEL
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent
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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional
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circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1).
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Rand, 113 F.3d at 1525.
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Without a reasonable method of securing and compensating counsel, the court will seek
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volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional
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circumstances exist, the district court must evaluate both the likelihood of success of the merits [and]
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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues
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involved.” Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances. Even if it is
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assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if
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proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases
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almost daily. Further, at this early stage in the proceedings, the court cannot make a determination that
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plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the court does
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not find that plaintiff cannot adequately articulate his claims. Id. Therefore, Plaintiff's motion for
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counsel is denied.
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II.
MOTION TO STAY PROCEEDINGS
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Plaintiff seeks a stay of the proceedings in this action on the ground that he is presently housed
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in administrative segregation and does not have access to his property or the law library, suffers from
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claustrophobia, and takes medication which makes him drowsy and incompetent.
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The Court does not lightly stay litigation, due to the possibility of prejudice to defendants.
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Plaintiff’s only pending deadline in this action is to file objections to the Magistrate's findings and
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recommendations of May 24, 2011. Although the court recognizes that Plaintiff is challenged by his
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disabilities and prison conditions, Plaintiff’s remedy is not soley a stay of this action. In the alternative,
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good cause appearing, Plaintiff shall be granted additional time to meet his pending case deadline to file
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objections. Therefore, Plaintiff's motion for stay is denied.
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III.
MOTION FOR EXTENSION OF TIME
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Plaintiff requests an extension of time in which to file objections to the Magistrate's findings and
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recommendations of May 24, 2011. Good cause appearing, Plaintiff shall be granted a sixty-day
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extension of time.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
Plaintiff's motion for appointment of counsel is DENIED;
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2.
Plaintiff's motion to stay this action is DENIED;
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3.
Plaintiff is GRANTED an extension of time until sixty days from the date of service of
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this order in which to file objections to the Magistrate's findings and recommendations
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of May 24, 2011.
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IT IS SO ORDERED.
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Dated:
6i0kij
June 14, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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