Rios v. Tilton, et. al.

Filing 119

ORDER signed by Magistrate Judge Kendall J. Newman on 4/23/12 Plaintiffs March 30, 2012 motion to stay this action 117 , is denied as moot; The deadlines set forth in this courts March 19, 2012 Further Scheduling Order 116 , shall remain in effect absent further order of this court; and the court will duly consider a further motion for appointment of counsel, particularly if filed and served by plaintiff within fourteen (14) days after service of this order.(Dillon, M)

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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,

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Plaintiff,

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

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

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Defendants.

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ORDER
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On March 30, 2012, plaintiff filed a motion to stay the deadlines set forth in this

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court’s Further Scheduling Order, issued March 19, 2012, until final resolution of plaintiff’s

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appeal then pending before the Ninth Circuit Court of Appeals. On April 3, 2012, the Court of

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Appeals issued a mandate rendering final its judgment entered January 10, 2012, which

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dismissed plaintiff’s appeal for lack of jurisdiction. (Dkt. Nos. 115, 118.) Therefore, plaintiff’s

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motion is now moot. The dates set forth in the recently-filed Further Scheduling Order (Dkt. No.

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116) shall remain in effect.

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One additional matter requires comment. The court previously denied plaintiff’s

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several motions for appointment of counsel. (See Dkt. Nos. 28, 42, 81, 105, 113.) Most

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recently, the court stated (Dkt. No. 113 at 2):

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The undersigned carefully reviewed and considered plaintiff’s
extensive filings in opposition to defendants’ motion for summary
judgment; they were factually detailed, and supported by adequate
documentation; additionally, they addressed the appropriate legal
standards and plaintiff persuasively presented his legal arguments;
moreover, plaintiff prevailed in part. Pending a ruling by the Court
of Appeals, this action may proceed to trial only on one claim, thus
becoming a less complex case legally, while becoming more
complex pragmatically. Absent a ruling from the Ninth Circuit,
there is no basis for granting plaintiff’s current request for
appointment of counsel. Therefore, the request will be denied,
without prejudice to its renewal after a ruling by the Court of
Appeals, and demonstration of particular need by plaintiff.

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The court also acknowledges that plaintiff resides in a Secure Housing Unit, with limited access

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to legal materials, and limited capacity to try this case on his own. Therefore, the court will duly

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consider a timely-filed further request for appointment of counsel in which plaintiff sets forth his

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unique circumstances and specific needs for representation in this case. Exceptional

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circumstances supporting appointment of counsel include an evaluation of plaintiff’s ability to

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advocate his claims in light of the complexity of the legal matters involved, and the likelihood of

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success on the merits of plaintiff’s claims. Agyeman v. Corrections Corporation of America, 390

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F.3d 1101, 1103 (9th Cir. 2004).

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For these reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s March 30, 2012 motion to stay this action (Dkt. No. 117), is denied

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as moot;

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2. The deadlines set forth in this court’s March 19, 2012 Further Scheduling

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Order (Dkt. No. 116), shall remain in effect absent further order of this court; and

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3. The court will duly consider a further motion for appointment of counsel,

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particularly if filed and served by plaintiff within fourteen (14) days after service of this order.

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DATED: April 23, 2012
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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rios0790.aft.app.

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