White v. Patel et al

Filing 28

ORDER DENYING Motion for Appointment of Counsel and/or Motion for Stay 22 ; ORDER DENYING Request for Teleconference; ORDER GRANTING Extension of Time to File Opposition to Motion to Dismiss; DEADLINE for Plaintiff to File Opposition to Motion to Dismiss NOVEMBER 4, 2013, signed by Magistrate Judge Gary S. Austin on 9/15/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEROME WHITE,

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Plaintiff,

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vs.

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1:11-cv-00047-AWI-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND/OR
MOTION FOR STAY
(Doc. 22.)

PATEL, et al.,

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Defendants.

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ORDER DENYING REQUEST FOR
TELECONFERENCE
ORDER GRANTING EXTENSION OF
TIME TO FILE OPPOSITION TO
MOTION TO DISMISS

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DEADLINE FOR PLAINTIFF TO FILE
OPPOSITION TO MOTION TO DISMISS:
NOVEMBER 4, 2013

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I.

BACKGROUND

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Jerome White ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing

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this action on January 11, 2011. (Doc. 1.) This case now proceeds on the First Amended

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Complaint, filed by Plaintiff on March 12, 2012, against defendants Chen, Patel, Ramon, and

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Thompson, for inadequate medical care under the Eighth Amendment. (Doc. 14.)

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On August 22, 2013, defendants Chen and Patel filed a motion to dismiss this action for
failure to exhaust administrative remedies. (Doc. 26.) On September 5, 2013, Plaintiff filed a
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motion for appointment of counsel and/or motion for stay, and a request for a telephonic

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conference. (Doc. 27.)

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II.

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MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff requests appointment of counsel because on July 11, 2013, he was admitted to

a state hospital for mentally disabled inmates, where an adequate law library is not provided.

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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

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represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However,

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in certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). 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

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues 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. At

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this stage of the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Defendants have filed a motion to dismiss for failure to exhaust

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remedies, which is pending. This issue is not complex, and based on the record in this action, it

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appears that Plaintiff is able to adequately articulate his claims and respond to court orders. Id.

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Therefore, Plaintiff’s motion for appointment of counsel shall be denied, without prejudice to

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renewal of the motion at a later stage of the proceedings.

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II.

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MOTION FOR STAY OF PROCEEDINGS
In the alternative, Plaintiff requests a stay of the proceedings in this action until after he

has been discharged from the mental health program.

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The Court does not lightly stay litigation, due to the possibility of prejudice to

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defendants. Although the Court recognizes that Plaintiff is challenged by his health concerns
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and hospitalization, Plaintiff=s only remedy is not a stay of this action. In the alternative,

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Plaintiff shall be granted an extension of time to respond to the motion to dismiss. Plaintiff

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claims that he has documentation showing he exhausted his remedies, and he expects to receive

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postal materials within the next twenty-one days. Research at the law library should not be

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necessary to respond to the motion to dismiss. Therefore, good cause appearing, Plaintiff shall

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be granted an extension of time in which to file an opposition to the motion to dismiss. Should

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Plaintiff require a further extension of time, he should file a motion before the current deadline

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expires. Thus, Plaintiff’s motion for stay shall be denied.

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III.

REQUEST FOR TELECONFERENCE

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Plaintiff requests the court to schedule a teleconference with all of the parties to this

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action, to discuss his present situation and find a solution. The court finds no good cause to

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schedule a conference at this juncture. By this order, Plaintiff’s immediate need for an

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extension of time in this action has been resolved. Therefore, Plaintiff’s request for a

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teleconference shall be denied.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for appointment of counsel is DENIED;

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2.

Plaintiff’s motion for stay of the proceeding in this action is DENIED;

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3.

Plaintiff’s request for a teleconference is DENIED; and

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4.

Plaintiff is granted an extension of time until November 4, 2013, to file an
opposition to defendants’ motion to dismiss of August 22, 2013.

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IT IS SO ORDERED.
Dated:

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September 15, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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