MacGregor v. Dial et al

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/25/13 ORDERING that 15 Motion to Appoint Counsel is DENIED; it is RECOMMENDED that plaintiffs request for a stay 14 be denied. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 21 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN ANTHONY MACGREGOR,

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Plaintiff,

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v.

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DR. DIAL, et al.,

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No. 2:13-cv-1883 LKK AC P

ORDER &
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S. § 1983. By separate order, the court has directed the U.S. Marshal to serve the summons

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and complaint upon defendants. Plaintiff, however, asks the court to stay proceedings based on

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his claims that prison mailroom staff are impeding his efforts to prosecute this action. ECF No.

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14. Plaintiff states that without the services of a private investigator hired by his mother, the

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court would not have received this motion or the service documents which have been returned to

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the court. ECF No. 15. Plainiff seeks a stay until such time as counsel, which he also requests, is

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appointed for him. Plaintiff also avers that he suffers from Hepatitis C and is about to undergo a

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second treatment with a new medication with a 90% chance of cure. Plaintiff contends that the

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treatment will be “harsh,” will commence at some point in 2014 and continue for a year, leaving

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plaintiff fatigued and “unable to focus,” further hindering his ability to proceed in the instant case.

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“The District Court has broad discretion to stay proceedings as an incident to its power to

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control its own docket.” Clinton v. Jones, 520 U.S. 681, 707 (1997) (citing Landis v. North

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American Co., 299 U.S. 248, 254 (1936)). “The proponent of the stay bears the burden of

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establishing its need.” Id. at 708. When ruling on a request to stay proceedings, the following

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factors are considered: (1) “the possible damage which may result from the granting of a stay”;

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(2) “the hardship or inequity which a party may suffer in being required to go forward,” and (3)

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“the orderly course of justice, measured in terms of the simplifying or complicating of issues,

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proof, and questions of law which could be expected to result from a stay.” Filtrol Corp. v.

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Kelleher, 467 F.2d 242, 244 (9th Cir.1972) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

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Cir.1962, in turn, citing Landis, supra, at 254-55.)). The court, in considering a stay, should

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“balance the length of any stay against the strength of the justification given for it.” Young v.

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I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000).

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The court finds that a stay of this action is unwarranted, primarily because plaintiff fails to

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carry his burden to demonstrate the need for a stay. A stay should not be imposed on the basis of

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conclusory allegations that non-parties are seeking to impede plaintiff’s pursuit of this action.

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The All Writs Act, 28 U.S.C ' 1651, provides authority for this court to inquire into any such

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interference, should plaintiff in the future provided concrete evidence of such impediment,

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together with the names of those alleged to be participating in efforts to obstruct him. As to the

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inconvenience to plaintiff of undergoing medical treatment while pursuing this action, plaintiff is

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reminded that this is hardly a unique circumstance. Prisoner-plaintiffs not infrequently undergo

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medical treatment or are provided medication during the course of their litigation. Moreover, the

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undersigned has now ordered service of the complaint. In these circumstances, the court finds

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that all factors weigh in favor of proceeding with, rather than delaying, this action.

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As noted, plaintiff has requested the appointment of counsel. The United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent prisoners

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in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Plaintiff has been able to set forth

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colorable claims in his complaint proceeding pro se. In the present case, the court does not find

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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will

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therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of
counsel (ECF No. 15) is denied.

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IT IS RECOMMENDED that plaintiff’s request for a stay (ECF No. 14) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: November 25, 2013

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