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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 1:15-cv-01828-DAD-BAM (PC)

REGINALD RAY YORK,
Plaintiff,

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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.

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Plaintiff Reginald Ray York is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This action proceeds on Plaintiff’s claims against Defendant Garcia

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for excessive force, Defendant Neighbors for failure to protect Plaintiff from the use of force, and

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Defendants Garcia and Neighbors for failure to decontaminate Plaintiff’s cell.

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On December 3, 2018, Plaintiff filed a motion for summary judgment. (ECF No. 64.) On

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February 4, 2019, Defendants Garcia and Neighbors filed both an opposition to Plaintiff’s motion

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for summary judgment and their own motion for partial summary judgment. (ECF Nos. 68, 69.)

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On February 21, 2019, Plaintiff filed a reply to his own motion for summary judgment. (ECF No.

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70.) On February 28, 2019, Defendants filed a reply in support of their motion for partial summary

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judgment. (ECF No. 71.) Also, on February 28, 2019, Plaintiff filed an opposition to Defendants’

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motion for partial summary judgment. (ECF No. 72.) On March 18, 2019, the Court granted

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Defendants’ request for leave to file a supplemental reply to their motion for partial summary
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judgment. (ECF No. 74.) On March 22, 2019, Defendants filed a supplemental reply to their

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motion for partial summary judgment. (ECF No. 75.)

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Currently before the Court is Plaintiff’s motion for a ruling on motion for summary

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judgment and for appointment of counsel, filed on June 10, 2019. (ECF No. 76.) In his motion,

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Plaintiff asserts that his First Amendment right to a just, speedy, and inexpensive determination of

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his court action has been violated because, even though this action was filed almost five years ago,

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this action has not yet been resolved due to the Court’s delay in deciding Plaintiff’s pending motion

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for summary judgment and the Defendants’ pending motion for partial summary judgment.

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Further, Plaintiff contends that the Court should appoint counsel to represent him because he has

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been prejudiced by the fact that this action has been proceeding for almost five years.

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First, with regards to Plaintiff’s request for a ruling on his own pending motion for summary

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judgment and Defendants’ pending motion for partial summary judgment, Plaintiff is reminded that

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this Court has an extremely large number of pro se plaintiff civil rights cases pending before it,

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and, therefore, delay is inevitable despite the Court’s best efforts. Due to the heavy caseload, both

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Plaintiff’s motion for summary judgment and Defendants’ motion for partial summary judgment

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are still awaiting decision. The Court is aware of the pendency of this action and will decide both

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Plaintiff’s and Defendants’ motions for summary judgment in due course. Therefore, the Court

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denies Plaintiff’s motion for a ruling on motion for summary judgment.

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Second, with regards to Plaintiff’s request for appointment of counsel, the Court notes that

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent Plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern District

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of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional circumstances, the Court

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may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek volunteer

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counsel only in the most serious and exceptional cases. In determining whether “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits

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[and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
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legal issues involved.” Id. (internal quotation marks and citations omitted). “Neither of these

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considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on the

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plaintiff. Id.

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Having considered the factors under Palmer, the Court finds that Plaintiff has failed to meet

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his burden of demonstrating exceptional circumstances warranting the appointment of counsel at

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this time. Therefore, Plaintiff’s request for the appointment of counsel is denied, without prejudice.

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Accordingly, Plaintiff’s motion for a ruling on motion for summary judgment and for

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appointment of counsel, (ECF No. 76), is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 13, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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