Larkin v. Shiver et al.

Filing 12

ORDER GRANTING Plaintiff's Request to Submit Exhibits, and DENYING Motion for Appointment of Counsel and Motion to Stay the Proceedings 9 , 10 , 11 , signed by Magistrate Judge Stanley A. Boone on 11/18/16: Motion for Appointment of Counsel and Motion to Stay are DENIED, without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHONDEL LARKIN,

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Plaintiff,
v.
SHEBA SHIVER, et al.,

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Defendants.

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Case No.: 1:16-cv-01590-SAB (PC)
ORDER GRANTING PLAINTIFF’S REQUEST TO
SUBMIT EXHIBITS, AND DENYING MOTION
FOR APPOINTMENT OF COUNSEL AND
MOTION TO STAY THE PROCEEDINGS
[ECF Nos. 9, 10, 11]

Plaintiff Shondel Larkin is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on October 28, 2016. Local Rule 302.

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Currently before the Court are Plaintiff’s motion to submit exhibits, filed October 24, 2016,

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and Plaintiff’s motion for appointment of counsel and motion to stay the proceedings, filed November

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16, 2016.

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I.

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DISCUSSION

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A.

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Plaintiff requests to submit exhibits in support of his complaint.

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In determining whether a complaint states a cognizable claim for relief, the Court may consider

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Motion to Submit Exhibits in Support of Complaint

materials attached as exhibits to the complaint and incorporated therein. Lee v. City of Los Angeles,
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250 F.3d 668, 688 (9th Cir. 2001); City of Fresno v. U.S., 709 F. Supp. 2d 888, 912 n.21 (E.D. Cal.

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2010). While it is not necessary for Plaintiff to submit exhibits in support of the allegations set forth

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in his complaint, the Court will grant Plaintiff’s request in this instance as Plaintiff has appropriately

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referenced and incorporated the exhibits in his complaint.

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B.

Motion for Appointment of Counsel

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

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

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

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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

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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 on the

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merits [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).

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In the present case, the Court does not find the required exceptional circumstances. Even if it

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. Plaintiff has thoroughly set forth his

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allegations in the complaint. However, at this early stage in the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in

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this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id.

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Accordingly, Plaintiff’s motion will be denied, without prejudice.

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C.

Motion to Stay the Proceedings

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Plaintiff requests that the Court stay the proceedings because he has been admitted to the

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Department of Mental Health to undergo mental health therapy. Plaintiff’s motion shall be denied,

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without prejudice. Plaintiff is advised that the Court is required to screen complaints brought by

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prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). The Court screens complaints in the order in which they are filed and strives to

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avoid delays whenever possible. However, there are numerous prisoner civil rights cases presently

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pending before the Court, and delays are inevitable despite the Court’s best efforts. Due to the heavy

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caseload, Plaintiff’s complaint is still awaiting screening. Thus, at the present time, there are no

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pending deadlines and no action by Plaintiff is necessary until the Court screens the complaint.

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Accordingly, the Court will deny Plaintiff’s motion to stay the proceedings, without prejudice.

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II.

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CONCLUSION
Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion to submit exhibits is GRANTED;

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2.

Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; and

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Plaintiff’s motion to stay the proceedings is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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November 18, 2016
UNITED STATES MAGISTRATE JUDGE

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