Kabede v. Pleasant Valley State Prison Warden, et al.

Filing 37

ORDER DENYING Plaintiff's 36 Motion to Appoint Counsel and 36 Motion to Stay Proceedings; ORDER DISCHARGING 35 Order to Show Cause; ORDER for Plaintiff to File a Third Amended Complaint or a Notice of Voluntary Dismissal, signed by Magistrate Judge Barbara A. McAuliffe on 06/30/17.(30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WONDIYRAD KABEDE,

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Plaintiff,

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v.
MULE CREEK PRISON WARDEN, et al.,

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Defendants.

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Case No. 1:15-cv-00635-BAM (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE
(ECF No. 35)
ORDER DENYING PLAINTIFF’S MOTION
TO STAY PROCEEDINGS AND TO
APPOINT COUNSEL
(ECF No. 36)
THIRTY (30) DAY DEADLINE

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Plaintiff Wondiyrad Kabede (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on August 13, 2013, in the Northern District of California. On April 24, 2015, the action

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was transferred to this Court. (ECF No. 13.) Plaintiff has consented to magistrate judge

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jurisdiction. (ECF No. 19.)
On May 3, 2017, the Court dismissed Plaintiff’s second amended complaint with leave to

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amend within thirty (30) days. (ECF No. 34.) Plaintiff failed to timely file an amended

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complaint. On June 12, 2017, the Court issued an order to show cause why this action should not

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be dismissed for failure to state a claim, failure to obey a court order, and failure to prosecute.

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(ECF No. 35.)

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On June 26, 2017, Plaintiff filed the instant motion, addressed to the Clerk of the Court,

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requesting a stay of proceedings or the appointment of counsel. (ECF No. 36.) Plaintiff states

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that he is not in a healthy condition to file and prepare court documents, as he has recently gotten

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a pacer implanted. Plaintiff states that due to swelling in his feet and legs, he is in pain 24 hours a

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day and is confined to a wheelchair. Plaintiff seeks a “pause” in this action until his condition

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improves, or the appointment of counsel due to his medical conditions. Plaintiff states that he is

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currently housed at California Health Care Facility. (Id.)

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I.

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

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control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. N. Amer.

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Co., 299 U.S. 248, 254 (1936)). The party seeking the stay bears the burden of establishing the

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need to stay the action. Clinton, 520 U.S. at 708.

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Stay of Proceedings

Plaintiff has not met his burden of establishing the need to stay this action. Plaintiff has

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not provided any indication of the extent of the requested stay, including the anticipated length of

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his recovery. However, the Court finds good cause for an extension of time to amend the

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complaint. If Plaintiff requires additional time following the extension granted here, the Court

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will consider a renewed motion for stay presenting evidence and information regarding the need

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for and extent of a stay, or further motions for extension of time setting forth good cause.

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II.

Appointment of Counsel

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court

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cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v.

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U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to § 1915(e)(1).

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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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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of
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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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The Court has considered Plaintiff’s renewed request for the appointment of counsel, but

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does not find the required exceptional circumstances here. Generally, a plaintiff that shows at

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least some ability to articulate his claims is not entitled to appointment of counsel, regardless of

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whether he has mental and physical health problems or is incarcerated. See, e.g., Warren v.

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Harrison, 244 Fed. Appx. 831, 832 (9th Cir. 2007) (holding that an inmate plaintiff who had

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alleged mental illness did not qualify for appointment of counsel because he competently

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presented his claims and attached three pertinent exhibits). In this case, despite Plaintiff’s

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allegations that he has had a pacer implanted, is in constant pain, and is confined to a wheelchair,

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he was able to draft and submit the instant motion articulating his position. Furthermore, at this

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early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits.

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Accordingly, it is HEREBY ORDERED that:

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1. The order to show cause issued on June 12, 2017 (ECF No. 35), is DISCHARGED;

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2. Plaintiff’s motion requesting a stay of proceedings and to appoint counsel (ECF No.

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36) is DENIED without prejudice;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a third

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amended complaint or a notice of voluntary dismissal; and

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4. If Plaintiff fails to file an amended complaint in compliance with this order, the

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Court will dismiss this action, with prejudice, for failure to state a claim and to

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obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 30, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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