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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 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 11 Plaintiff, 12 vs. 13 14 UNITED STATES OF AMERICA, et al., (ECF NO. 25) Defendants. 15 16 _____________________________/ THIRTY-DAY DEADLINE 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Joseph Anthony Brown, a federal prisoner proceeding pro se filed this 20 action on September 15, 2011 pursuant to 42 U.S.C. § 1983 and Bivens v. Six 21 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 22 (Compl., ECF No. 1.) Plaintiff’s Complaint and First Amended Complaint were 23 dismissed with leave to amend for failure to state a claim. (Orders Dismiss., ECF Nos. 24 12, 22.) 25 Now before the Court is Plaintiff’s Motion for an Indefinite Extension of Time to 26 File a Second Amended Complaint (Motion for Extension of Time, ECF No. 25) which 27 28 -1- 1 includes a Request for Appointment of Counsel. (Id.) 2 II. ANALYSIS 3 A. Extension of Time 4 Plaintiff’s seeks an indefinite extension of time to file his Second Amended 5 Complaint, effectively staying this action, because he is housed in a Special 6 Management Unit which includes lock-down and library access restrictions. 7 “The district court has broad discretion to stay proceedings as an incident to its 8 power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-707 (1997) 9 (citing Landis v. North American Co., 299 U.S. 248, 254 (1936)). “The proponent of 10 the stay bears the burden of establishing its need.” Id. at 706. The Court considers the 11 following factors when ruling on a request to stay proceedings: (1) the possible 12 damage which may result from the granting of a stay; (2) the hardship or inequity 13 which a party may suffer in being required to go forward, and (3) the orderly course of 14 justice, measured in terms of the simplifying or complicating of issues, proof, and 15 questions of law which could be expected to result from a stay. Filtrol Corp. v. 16 Kelleher, 467 F.2d 242, 244 (9th Cir. 1972) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 17 268 (9th Cir. 1962)). In considering a stay order, the court should “balance the length 18 of any stay against the strength of the justification given for it.” Young v. I.N.S., 208 19 F.3d 1116, 1119 (9th Cir. 2000). 20 The Court finds that Plaintiff has not met his burden of showing that an 21 indefinite stay of this action is necessary. Plaintiff has not alleged facts demonstrating 22 an inability to prepare an amended pleading. Prejudice both to Defendants and the 23 Court’s management of its docket weighs against an indefinite stay. The Court has a 24 vast caseload before it and can not allow this matter to be stayed indefinitely. Risk of 25 prejudice to the Defendants, including potential proof complications and loss of 26 evidence, also weighs against an indefinite stay; a presumption of injury arises from 27 28 -2- 1 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 2 3 Court finds good cause for, and hereby GRANTS a thirty day extension of time to file 4 a Second Amended Complaint. 5 B. 6 Planitiff requests that the Court appoint counsel for him, citing a lack of both 7 computer literacy and assistance in the law library. Plaintiff does not have a constitutional right to appointed counsel in this action, 8 9 Appointment of Counsel Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981), and the Court cannot 10 require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 11 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 12 (1989). In certain exceptional circumstances the Court may request the voluntary 13 assistance of counsel pursuant to section 1915(e)(1). Aldabe v. Aldabe, 616 F.2d 14 1089, 1093 (9th Cir. 1080). However, without a reasonable method of securing and 15 compensating counsel, the Court will seek volunteer counsel only in the most serious 16 and exceptional cases. In determining whether “exceptional circumstances exist, the 17 district court must evaluate both the likelihood of success of the merits [and] the ability 18 of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal 19 issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 20 In the present case, the Court does not find the required exceptional 21 circumstances.1 Even if it is assumed that Plaintiff is not well versed in the law and 22 that he has made serious allegations which, if proved, would entitle him to relief, his 23 case is not exceptional. This Court is faced with similar cases almost daily. Further, at 24 this early stage in the proceedings, the Court cannot make a determination that 25 26 27 28 1 Plaintiff’s previous motion for appointment of counsel on similar grounds was denied by the Court. (Order Den. Appt. Counsel, ECF No. 8.) -3- 1 Plaintiff is likely to succeed on the merits, and based on a review of the record in this 2 case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id. 3 Plaintiff’s Motion for Appointment of Counsel (ECF No. 25) is DENIED without 4 prejudice. 5 III. ORDER 6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s Motion for Extension of Time (ECF NO. 25) is GRANTED IN 8 PART such that Plaintiff shall within thirty days from the date of service 9 of this order file a Second Amended Complaint, and DENIED IN PART as to Plaintiff’s request for an indefinite stay, and 10 2. 11 Plaintiff’s Request for Appointment of Counsel (ECF No. 25) is DENIED without prejudice. 12 13 14 15 IT IS SO ORDERED. 16 17 Dated: ci4d6 May 30, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 -4-

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