York v. Stewart et al

Filing 77

ORDER Denying Plaintiff's 76 Motion for a Ruling on Motion for Summary Judgment and for Appointment of Counsel signed by Magistrate Judge Barbara A. McAuliffe on 06/13/2019. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 1:15-cv-01828-DAD-BAM (PC) REGINALD RAY YORK, Plaintiff, 13 14 15 ORDER DENYING PLAINTIFF’S MOTION FOR A RULING ON MOTION FOR SUMMARY JUDGMENT AND FOR APPOINTMENT OF COUNSEL v. G. GARCIA, et al., (ECF No. 76) Defendants. 16 17 Plaintiff Reginald Ray York is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. ' 1983. This action proceeds on Plaintiff’s claims against Defendant Garcia 19 for excessive force, Defendant Neighbors for failure to protect Plaintiff from the use of force, and 20 Defendants Garcia and Neighbors for failure to decontaminate Plaintiff’s cell. 21 On December 3, 2018, Plaintiff filed a motion for summary judgment. (ECF No. 64.) On 22 February 4, 2019, Defendants Garcia and Neighbors filed both an opposition to Plaintiff’s motion 23 for summary judgment and their own motion for partial summary judgment. (ECF Nos. 68, 69.) 24 On February 21, 2019, Plaintiff filed a reply to his own motion for summary judgment. (ECF No. 25 70.) On February 28, 2019, Defendants filed a reply in support of their motion for partial summary 26 judgment. (ECF No. 71.) Also, on February 28, 2019, Plaintiff filed an opposition to Defendants’ 27 motion for partial summary judgment. (ECF No. 72.) On March 18, 2019, the Court granted 28 Defendants’ request for leave to file a supplemental reply to their motion for partial summary 1 1 judgment. (ECF No. 74.) On March 22, 2019, Defendants filed a supplemental reply to their 2 motion for partial summary judgment. (ECF No. 75.) 3 Currently before the Court is Plaintiff’s motion for a ruling on motion for summary 4 judgment and for appointment of counsel, filed on June 10, 2019. (ECF No. 76.) In his motion, 5 Plaintiff asserts that his First Amendment right to a just, speedy, and inexpensive determination of 6 his court action has been violated because, even though this action was filed almost five years ago, 7 this action has not yet been resolved due to the Court’s delay in deciding Plaintiff’s pending motion 8 for summary judgment and the Defendants’ pending motion for partial summary judgment. 9 Further, Plaintiff contends that the Court should appoint counsel to represent him because he has 10 been prejudiced by the fact that this action has been proceeding for almost five years. 11 First, with regards to Plaintiff’s request for a ruling on his own pending motion for summary 12 judgment and Defendants’ pending motion for partial summary judgment, Plaintiff is reminded that 13 this Court has an extremely large number of pro se plaintiff civil rights cases pending before it, 14 and, therefore, delay is inevitable despite the Court’s best efforts. Due to the heavy caseload, both 15 Plaintiff’s motion for summary judgment and Defendants’ motion for partial summary judgment 16 are still awaiting decision. The Court is aware of the pendency of this action and will decide both 17 Plaintiff’s and Defendants’ motions for summary judgment in due course. Therefore, the Court 18 denies Plaintiff’s motion for a ruling on motion for summary judgment. 19 Second, with regards to Plaintiff’s request for appointment of counsel, the Court notes that 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 21 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent Plaintiff 22 pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern District 23 of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional circumstances, the Court 24 may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the Court will seek volunteer 26 counsel only in the most serious and exceptional cases. In determining whether “exceptional 27 circumstances exist, the district court must evaluate both the likelihood of success on the merits 28 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 2 1 legal issues involved.” Id. (internal quotation marks and citations omitted). “Neither of these 2 considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 3 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on the 4 plaintiff. Id. 5 Having considered the factors under Palmer, the Court finds that Plaintiff has failed to meet 6 his burden of demonstrating exceptional circumstances warranting the appointment of counsel at 7 this time. Therefore, Plaintiff’s request for the appointment of counsel is denied, without prejudice. 8 Accordingly, Plaintiff’s motion for a ruling on motion for summary judgment and for 9 appointment of counsel, (ECF No. 76), is HEREBY DENIED. 10 11 12 13 IT IS SO ORDERED. Dated: /s/ Barbara June 13, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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