Jacobs v. Quinones et al

Filing 155

ORDER DENYING Plaintiff's Motion to Stay the Action and for Appointment of Counsel 154 , signed by Magistrate Judge Jennifer L. Thurston on 3/15/16: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:10-cv-02349 AWI-JLT (PC)

GEORGE E. JACOBS, IV,
Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
TO STAY THE ACTION AND FOR
APPOINTMENT OF COUNSEL

v.

(Docs. 154)

A.C. QUINONES, et al.,

30-DAY DEADLINE

Defendant.

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On February 16, 2016, Plaintiff filed a motion to extend his time to file objections to the

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findings and recommendations to grant Defendants’ motions for summary judgment and/or to

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stay this action due to his medical condition. (Doc. 154.) For the reasons set forth below, the

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motion is DENIED.

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Notably, Defendants’ filed their motion for summary judgment over a year ago, on

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January 30, 2015. (Doc. 124.) The Court issued the Second Informational Order, informing

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Plaintiff of the requirements and his obligation to file either an opposition or a statement of non-

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opposition to the motion for summary judgment. (Doc. 133.) Plaintiff requested and received

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five extensions of time to file his opposition to Defendants’ motion. (See Docs. 128, 129, 131,

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132, 136-139.)

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Thereafter, on May 22, 2015, Plaintiff filed a motion to extend the time to file his

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opposition and/or to stay the deadline pursuant to Rule 56(d).1 The Court denied this motion since

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Plaintiff failed to specifically identify relevant information via discovery that he needed, his basis

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for believing that the information actually existed and that it would prevent summary judgment.

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(See Doc. 144, citing Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009);

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Getz v. Boeing Co., 654 F.3d 852, 867-68 (9th Cir. 2011); Tatum v. City and County of San

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Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006).) However, the Court granted him yet another

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30-day extension of time to file his opposition. (Id.)
When after 60 days Plaintiff still had not filed his opposition to the motion, the Court

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issued the findings and recommendations to grant Defendants’ motion for summary judgment.

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(Doc. 147.) Thereafter, Plaintiff requested and received two, 45-day extensions of time to file his

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objections. (See Docs. 148-151.) On December 11, 2015, Plaintiff filed a notice, which he

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penned and signed on November 24, 2015, indicating that his right arm was broken during a riot

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which occurred 11 days prior. (Doc. 152.) Plaintiff indicated that, as of the date he signed this

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notice, though he had undergone surgery, it remained broken. (Id.) On January 26, 2016, the

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Court granted Plaintiff a final extension of time until February 12, 2016 to file objections to the

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findings and recommendations. (Doc. 153.) On February 16, 2016, Plaintiff filed a typed motion

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for further extension of time and/or stay of the action in which he indicated that his right

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arm/hand is paralyzed, possibly permanently, which prevents him from being able to write and

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perform daily activities. (Id.)2
The Court notes that in November of 2015, Plaintiff was able to write the “notice” of his

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injury in this case (see Doc. 152), also to write and file similar notices in two other actions (see

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Jacobs v. Sullivan et al., 1:05-cv-01625-SAB, Doc. 172; Jacobs v. Scribner, et al.,1:06-cv-1280-

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AWI-EPG, Doc. 178). The Court notes also that, attached to his most recent request for

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extension and/or stay, Plaintiff submitted a response from defense counsel in Jacobs v. Sullivan et

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al., which indicates that Plaintiff was scheduled to undergo surgery for his arm on December 3,

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2015 and hernia repair on December 7, 2015. (Doc. 154, p. 4.) It further indicated that Plaintiff’s

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The Court noted that Plaintiff cited to Federal Rule of Civil Procedure 56(f), but that his motion was properly
analyzed under subsection (d) given the nature of his request.
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This was not signed under penalty of perjury.

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right arm would be in a cast for about 6 months and that recovery from the hernia repair was

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expected to take 8-12 weeks during which his ability to sit for long periods of time will be

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limited. It is now more than three months post-op for Plaintiff’s right arm and February 29, 2016

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marked 12 weeks post-op for repair of his hernia. While Plaintiff has asserted difficulty, he has

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failed to show that he is unable to write or type, which his notices filed within two weeks of the

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injury and the current one, would belie. Further, the Court has appointed counsel in one of his

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other actions and has stayed the other, which leaves this as Plaintiff’s only active case in which he

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must personally engage.

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Plaintiff’s conduct has prolonged resolution of Defendants’ motion for summary judgment

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unreasonably. They should not have to wait a further extended period to have their case decided

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finally. Moreover, the Court is concerned that further delay may make witnesses unavailable or

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cause their memories to fade, and will work prejudice to all parties. The Court has already

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granted Plaintiff an excessive number of extensions of time both to oppose the motion and to file

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objections to the findings and recommendations to grant it—which have apparently arisen as a

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result of Plaintiff’s choice to attend more closely to his other cases than the one at bar. (See

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generally Jacobs v. Sullivan et al., 1:05-cv-01625-SAB; Jacobs v. Scribner, et al.,1:06-cv-1280-

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AWI-EPG.)

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Further, the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1), Rand v Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and did so in response to

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Plaintiff’s motion. The Court has contacted numerous attorneys—including counsel already

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assigned to Plaintiff’s Sullivan case—to accept pro bono appointment for the limited purpose of

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filing the objections, but all have declined the appointment. Plaintiff does not have a

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constitutional right to appointed counsel in this action, Rand, 113 F.3d at 1525, and the Court

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cannot require/force an unwilling attorney to represent Plaintiff pursuant to 28 U.S.C. §

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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S.

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296, 298 (1989). Nothing in this order is intended to limit Plaintiff from attempting to secure

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legal representation via his own efforts.

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In any event, without discounting the seriousness of his medical condition, the Court is

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convinced that Plaintiff has chosen extensive delay tactics to prevent resolution of this matter.

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Thus, the Court ORDERS:

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Plaintiff’s motion (Doc. 154) is DENIED as follows:

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a.

The request to stay this action is DENIED;

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b.

The request for appointment of counsel is DENIED.

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2.

Plaintiff is SHALL file his objections to the findings and recommendations to

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grant Defendants’ motion for summary judgment no later than April 14, 2016. Failure to do so

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will waive all objections.

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IT IS SO ORDERED.
Dated:

March 15, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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