Rios v. Tilton, et. al.

Filing 113

ORDER signed by Magistrate Judge Kendall J. Newman on 12/12/2011 ORDERING that plaintiff's 107 request for appointment of counsel is DENIED, without prejudice; and plaintiff's 108 motion to "stay" is GRANTED as to the 11/2/11 Further Scheduling Order is VACATED pending further order of this court. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RENO FUENTES RIOS,
Plaintiff,

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vs.
J.E. TILTON, et al.,
Defendants.

ORDER
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No. 2:07-cv-0790 WBS KJN P

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,

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with a civil rights action. Presently pending before the undersigned is plaintiff’s motion for

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appointment of counsel, and plaintiff’s motion to stay the court’s scheduling order filed

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November 2, 2011. (Dkt. Nos. 107, 108.) Also pending is plaintiff’s appeal to the Ninth Circuit

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Court of Appeals, of this court’s order filed October 19, 2011, which adopted the findings and

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recommendations that defendants’ motion for summary judgment be granted in part and denied

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in part. (Dkt. Nos. 96, 100.)

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This is plaintiff’s sixth motion requesting appointment of counsel. The court

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denied each of plaintiff’s prior requests, filed on September 19, 2008, March 16, 2009, August

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10, 2009, July 8, 2010 and October 21, 2011. In his present motion, plaintiff has completed a

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form request, which sets forth boilerplate language asserting, inter alia, that plaintiff’s action is

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meritorious and presents complex legal issues; that plaintiff has been denied reasonable access to

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the prison law library; and that plaintiff lacks education and legal training, and is unable to fairly

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present his case against experienced attorneys.

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The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). “A finding of the exceptional circumstances of the plaintiff seeking assistance

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requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and an

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evaluation of the plaintiff’s ability to articulate his claims in light of the complexity of the legal

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issues involved.” Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

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2004) (citations and internal quotations omitted).

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In the present case, the court does not find the required exceptional circumstances.

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The undersigned carefully reviewed and considered plaintiff’s extensive filings in opposition to

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defendants’ motion for summary judgment; they were factually detailed, and supported by

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adequate documentation; additionally, they addressed the appropriate legal standards and plaintiff

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persuasively presented his legal arguments; moreover, plaintiff prevailed in part. Pending a

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ruling by the Court of Appeals, this action may proceed to trial only on one claim, thus becoming

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a less complex case legally, while becoming more complex pragmatically. Absent a ruling from

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the Ninth Circuit, there is no basis for granting plaintiff’s current request for appointment of

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counsel. Therefore, the request will be denied, without prejudice to its renewal after a ruling by

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the Court of Appeals, and demonstration of particular need by plaintiff.

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Plaintiff also requests that the deadlines set forth in the Further Scheduling Order

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filed November 2, 2011 (Dkt. No. 104), be stayed pending a ruling by the Ninth Circuit.

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Plaintiff’s request is reasonable, because the scheduling order requires filings by plaintiff in early

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January 2012.

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Accordingly, for good cause shown, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel (Dkt. No. 107), is denied without

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prejudice; and
2. Plaintiff’s motion to “stay” (Dkt. No. 108), is granted as follows: the Further

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Scheduling Order filed November 2, 2011, is vacated pending further order of this court.

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DATED: December 12, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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rios0790.31.thr.req.stay