Martinez v. Hoover, et al

Filing 70

ORDER signed by Magistrate Judge Craig M. Kellison on 8/27/12 ORDERING that Plaintiffs motion for a stay of proceedings 61 is DENIED; Plaintiffs motions for the appointment of counsel 62 , 63 , and 65 are DENIED; Defendants motion to compel [66 ] is GRANTED; Plaintiff is ordered to attend his next properly noticed deposition; Plaintiff is ordered to pay to defendants, through their counsel, the sum of $3,503.96 as reasonable expenses under Federal Rule of Civil Procedure 37(d)(3); The time to conduct discovery is extended to December 3, 2012; and Dispositive motions are due within 90 days from the discovery cut-off date. (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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ARCHIE A. MARTINEZ,

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No. 2:09-CV-0680-KJM-CMK-P

Plaintiff,
vs.

ORDER

G. HOOVER, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for a stay of proceedings

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(Doc. 61); (2) plaintiff’s motions for the appointment of counsel (Docs. 62, 63, and 65); and (3)

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defendants’ motion to compel (Doc. 66).

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In his motion for a stay of proceedings, plaintiff asks for proceedings in this case

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to “stop temporarily” due to mental illness. According to plaintiff, he suffers from a number of

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mental impairments which render him unable to proceed. Plaintiff has not, however, provided

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the court with any evidence to document the alleged mental impairments or their affect, if any, on

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his ability to litigate this case. To the contrary, plaintiff’s filings reflect that he can articulate his

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position sufficiently at the present time, despite any mental impairments. Further, according to
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plaintiff, he is taking medications for his mental impairments, and there is no indication that

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these medications do not alleviate any symptoms he may experience. At this time, the court finds

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that a stay of proceedings is not warranted.

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Plaintiff seeks the appointment of counsel as an alternative to a stay of

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

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require counsel to represent indigent prisoners in § 1983 cases. See 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). See 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 “exceptional circumstances” requires an evaluation of both the

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his

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own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.

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Neither factor is dispositive and both must be viewed together before reaching a decision. See

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id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. As discussed above, plaintiff’s filings reveal that he has the ability to articulate

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his position on his own. Further, plaintiff’s medical care, excessive force, and retaliation claims

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are straightforward and not particularly complex, either legally or factually. The court does not

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find that exceptional circumstances warranting appointment of counsel exist at the present time.

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Defendants seek sanctions resulting from plaintiff’s failure to attend his properly

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noticed deposition. According to defendants, plaintiff refused to leave his cell to attend a

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properly noticed deposition on March 2, 2012. They state that plaintiff agreed to attend if his

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prison mental health physician was present but that, when the doctor was made available,

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plaintiff still refused to attend. There court hereby orders plaintiff to attend his next properly

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noticed deposition under penalty of possible dismissal of the action should plaintiff fail to

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comply. See Fed. R. Civ. P. 37(d)(3). As the prevailing party, the court must direct plaintiff to
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pay defendants’ reasonable expenses incurred in relation to the March 2, 2012, deposition.

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See id. Here, as established in defendants’ counsel’s declaration, such amount is $3,503.96.

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The court will, by this order, extend the time to conduct discovery and file
dispositive motions.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for a stay of proceedings (Doc. 61) is denied;

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2.

Plaintiff’s motions for the appointment of counsel (Docs. 62, 63, and 65)

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3.

Defendants’ motion to compel (Doc. 66) is granted;

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4.

Plaintiff is ordered to attend his next properly noticed deposition;

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5.

Plaintiff is ordered to pay to defendants, through their counsel, the sum of

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are denied;

$3,503.96 as reasonable expenses under Federal Rule of Civil Procedure 37(d)(3);

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6.

The time to conduct discovery is extended to December 3, 2012; and

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7.

Dispositive motions are due within 90 days from the discovery cut-off

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date.

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DATED: August 27, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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