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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WONDIYRAD KABEDE, 12 Plaintiff, 13 14 v. MULE CREEK PRISON WARDEN, et al., 15 Defendants. 16 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 17 Plaintiff Wondiyrad Kabede (“Plaintiff”) is a state prisoner proceeding pro se and in 18 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 20 action on August 13, 2013, in the Northern District of California. On April 24, 2015, the action 21 was transferred to this Court. (ECF No. 13.) Plaintiff has consented to magistrate judge 22 jurisdiction. (ECF No. 19.) On May 3, 2017, the Court dismissed Plaintiff’s second amended complaint with leave to 23 24 amend within thirty (30) days. (ECF No. 34.) Plaintiff failed to timely file an amended 25 complaint. On June 12, 2017, the Court issued an order to show cause why this action should not 26 be dismissed for failure to state a claim, failure to obey a court order, and failure to prosecute. 27 (ECF No. 35.) 28 /// 1 1 On June 26, 2017, Plaintiff filed the instant motion, addressed to the Clerk of the Court, 2 requesting a stay of proceedings or the appointment of counsel. (ECF No. 36.) Plaintiff states 3 that he is not in a healthy condition to file and prepare court documents, as he has recently gotten 4 a pacer implanted. Plaintiff states that due to swelling in his feet and legs, he is in pain 24 hours a 5 day and is confined to a wheelchair. Plaintiff seeks a “pause” in this action until his condition 6 improves, or the appointment of counsel due to his medical conditions. Plaintiff states that he is 7 currently housed at California Health Care Facility. (Id.) 8 I. 9 The district court “has broad discretion to stay proceedings as an incident to its power to 10 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. N. Amer. 11 Co., 299 U.S. 248, 254 (1936)). The party seeking the stay bears the burden of establishing the 12 need to stay the action. Clinton, 520 U.S. at 708. 13 Stay of Proceedings Plaintiff has not met his burden of establishing the need to stay this action. Plaintiff has 14 not provided any indication of the extent of the requested stay, including the anticipated length of 15 his recovery. However, the Court finds good cause for an extension of time to amend the 16 complaint. If Plaintiff requires additional time following the extension granted here, the Court 17 will consider a renewed motion for stay presenting evidence and information regarding the need 18 for and extent of a stay, or further motions for extension of time setting forth good cause. 19 II. Appointment of Counsel 20 As Plaintiff was previously informed, he does not have a constitutional right to appointed 21 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court 22 cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 23 U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 24 circumstances the Court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). 25 Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 2 1 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 The Court has considered Plaintiff’s renewed request for the appointment of counsel, but 4 does not find the required exceptional circumstances here. Generally, a plaintiff that shows at 5 least some ability to articulate his claims is not entitled to appointment of counsel, regardless of 6 whether he has mental and physical health problems or is incarcerated. See, e.g., Warren v. 7 Harrison, 244 Fed. Appx. 831, 832 (9th Cir. 2007) (holding that an inmate plaintiff who had 8 alleged mental illness did not qualify for appointment of counsel because he competently 9 presented his claims and attached three pertinent exhibits). In this case, despite Plaintiff’s 10 allegations that he has had a pacer implanted, is in constant pain, and is confined to a wheelchair, 11 he was able to draft and submit the instant motion articulating his position. Furthermore, at this 12 early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to 13 succeed on the merits. 14 Accordingly, it is HEREBY ORDERED that: 15 1. The order to show cause issued on June 12, 2017 (ECF No. 35), is DISCHARGED; 16 2. Plaintiff’s motion requesting a stay of proceedings and to appoint counsel (ECF No. 17 18 36) is DENIED without prejudice; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a third 19 amended complaint or a notice of voluntary dismissal; and 20 4. If Plaintiff fails to file an amended complaint in compliance with this order, the 21 Court will dismiss this action, with prejudice, for failure to state a claim and to 22 obey a court order. 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara June 30, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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