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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERT BENYAMINI, ) ) Plaintiff, ) ) vs. ) ) DEBBIE MANJUANO, et al., ) ) ) Defendants. ) ) ____________________________________) 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 17 18 I. BACKGROUND 19 Robert Benyamini (“plaintiff”) is a prisoner proceeding pro se in this civil rights action pursuant 20 to 42 U.S.C. § 1983. Plaintiff filed the original complaint on August 21, 2006. (Doc. 1.) Pending 21 before the Court is plaintiff’s motion for appointment of counsel, to stay these proceedings, and for an 22 extension of time to file objections to the findings and recommendations. (Doc. 98.) 23 II. MOTION FOR COUNSEL 24 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 26 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 27 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 28 1 1 circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). 2 Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional 5 circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] 6 the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 7 involved.” Id. (internal quotation marks and citations omitted). 8 In the present case, the court does not find the required exceptional circumstances. Even if it is 9 assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 10 proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases 11 almost daily. Further, at this early stage in the proceedings, the court cannot make a determination that 12 plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the court does 13 not find that plaintiff cannot adequately articulate his claims. Id. Therefore, Plaintiff's motion for 14 counsel is denied. 15 II. MOTION TO STAY PROCEEDINGS 16 Plaintiff seeks a stay of the proceedings in this action on the ground that he is presently housed 17 in administrative segregation and does not have access to his property or the law library, suffers from 18 claustrophobia, and takes medication which makes him drowsy and incompetent. 19 The Court does not lightly stay litigation, due to the possibility of prejudice to defendants. 20 Plaintiff’s only pending deadline in this action is to file objections to the Magistrate's findings and 21 recommendations of May 24, 2011. Although the court recognizes that Plaintiff is challenged by his 22 disabilities and prison conditions, Plaintiff’s remedy is not soley a stay of this action. In the alternative, 23 good cause appearing, Plaintiff shall be granted additional time to meet his pending case deadline to file 24 objections. Therefore, Plaintiff's motion for stay is denied. 25 /// 26 /// 27 /// 28 2 1 III. MOTION FOR EXTENSION OF TIME 2 Plaintiff requests an extension of time in which to file objections to the Magistrate's findings and 3 recommendations of May 24, 2011. Good cause appearing, Plaintiff shall be granted a sixty-day 4 extension of time. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for appointment of counsel is DENIED; 7 2. Plaintiff's motion to stay this action is DENIED; 8 3. Plaintiff is GRANTED an extension of time until sixty days from the date of service of 9 this order in which to file objections to the Magistrate's findings and recommendations 10 of May 24, 2011. 11 12 IT IS SO ORDERED. 13 Dated: 6i0kij June 14, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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