Brown v. United States of America et al

Filing 26

ORDER signed by Magistrate Judge Michael J. Seng on 5/30/2012 granting in part and denying in part 25 Motion to extend time to file a second amended complaint and denying request for appointment of counsel. ( Amended Complaint due by 7/5/2012).(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH ANTHONY BROWN,

1:11-CV-01562-MJS (PC)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO EXTEND TIME TO FILE A
SECOND AMENDED COMPLAINT AND
DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA, et
al.,

(ECF NO. 25)
Defendants.

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_____________________________/

THIRTY-DAY DEADLINE

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I.

PROCEDURAL HISTORY

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Plaintiff Joseph Anthony Brown, a federal prisoner proceeding pro se filed this
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action on September 15, 2011 pursuant to 42 U.S.C. § 1983 and Bivens v. Six
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Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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(Compl., ECF No. 1.) Plaintiff’s Complaint and First Amended Complaint were
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dismissed with leave to amend for failure to state a claim. (Orders Dismiss., ECF Nos.
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12, 22.)
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Now before the Court is Plaintiff’s Motion for an Indefinite Extension of Time to
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File a Second Amended Complaint (Motion for Extension of Time, ECF No. 25) which
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includes a Request for Appointment of Counsel. (Id.)

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II.

ANALYSIS

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A.

Extension of Time

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Plaintiff’s seeks an indefinite extension of time to file his Second Amended

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Complaint, effectively staying this action, because he is housed in a Special

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Management Unit which includes lock-down and library access restrictions.

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“The district court has broad discretion to stay proceedings as an incident to its

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power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-707 (1997)

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(citing Landis v. North American Co., 299 U.S. 248, 254 (1936)). “The proponent of

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the stay bears the burden of establishing its need.” Id. at 706. The Court considers the

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following factors when ruling on a request to stay proceedings: (1) the possible

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damage which may result from the granting of a stay; (2) the hardship or inequity

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which a party may suffer in being required to go forward, and (3) the orderly course of

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justice, measured in terms of the simplifying or complicating of issues, proof, and

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questions of law which could be expected to result from a stay. Filtrol Corp. v.

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Kelleher, 467 F.2d 242, 244 (9th Cir. 1972) (quoting CMAX, Inc. v. Hall, 300 F.2d 265,

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268 (9th Cir. 1962)). In considering a stay order, the court should “balance the length

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of any stay against the strength of the justification given for it.” Young v. I.N.S., 208

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F.3d 1116, 1119 (9th Cir. 2000).

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The Court finds that Plaintiff has not met his burden of showing that an

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indefinite stay of this action is necessary. Plaintiff has not alleged facts demonstrating

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an inability to prepare an amended pleading. Prejudice both to Defendants and the

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Court’s management of its docket weighs against an indefinite stay. The Court has a

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vast caseload before it and can not allow this matter to be stayed indefinitely. Risk of

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prejudice to the Defendants, including potential proof complications and loss of

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evidence, also weighs against an indefinite stay; a presumption of injury arises from

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delay in resolving an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
However, given Plaintiff's asserted housing and law library restrictions, the

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Court finds good cause for, and hereby GRANTS a thirty day extension of time to file

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a Second Amended Complaint.

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B.

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Planitiff requests that the Court appoint counsel for him, citing a lack of both

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computer literacy and assistance in the law library.
Plaintiff does not have a constitutional right to appointed counsel in this action,

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Appointment of Counsel

Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981), and the Court cannot

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require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Aldabe v. Aldabe, 616 F.2d

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1089, 1093 (9th Cir. 1080). However, without a reasonable method of securing and

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compensating counsel, the Court will seek volunteer counsel only in the most serious

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and exceptional cases. In determining whether “exceptional circumstances exist, the

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district court must evaluate both the likelihood of success of the merits [and] the ability

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of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal

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issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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In the present case, the Court does not find the required exceptional

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circumstances.1 Even if it is assumed that Plaintiff is not well versed in the law and

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that he has made serious allegations which, if proved, would entitle him to relief, his

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case is not exceptional. This Court is faced with similar cases almost daily. Further, at

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this early stage in the proceedings, the Court cannot make a determination that

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Plaintiff’s previous motion for appointment of counsel on similar grounds was denied by the
Court. (Order Den. Appt. Counsel, ECF No. 8.)

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Plaintiff is likely to succeed on the merits, and based on a review of the record in this

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case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id.

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Plaintiff’s Motion for Appointment of Counsel (ECF No. 25) is DENIED without

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prejudice.

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III.

ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motion for Extension of Time (ECF NO. 25) is GRANTED IN

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PART such that Plaintiff shall within thirty days from the date of service

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of this order file a Second Amended Complaint, and DENIED IN PART
as to Plaintiff’s request for an indefinite stay, and

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2.

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Plaintiff’s Request for Appointment of Counsel (ECF No. 25) is DENIED
without prejudice.

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IT IS SO ORDERED.

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Dated:
ci4d6

May 30, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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