Stoops v. Beasley et al.

Filing 20

ORDER signed by Magistrate Judge Craig M. Kellison on 5/24/2017 DENYING 18 Motion to Appoint Counsel and CONDITIONALLY GRANTING 19 Motion for Stay of Court's Scheduling Order. If defendants' exhaustion motion is filed by 6/2/2017, the 17 Scheduling Order will be stayed without further order of the court. Otherwise, the 17 Scheduling Order will remain in effect. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDY STOOPS,

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Plaintiff,
vs.

ORDER

JOSEPH M. BEASLEY, et al.,
Defendants.

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No. 2:15-CV-2581-MCE-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.
Plaintiff seeks the appointment of counsel (Doc. 18). The United States Supreme

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

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

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In certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See 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. First, plaintiff’s filings demonstrate that he has an ability to articulate himself

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and his claims. Second, plaintiff’s claims are not complex. Finally, at this early stage of the

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proceedings the court cannot say whether plaintiff has any particular likelihood of success on the

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merits of his claims. Rather than presenting exceptional circumstances, the reasons cited in

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plaintiff’s motion justifying the appointment of counsel – his incarceration, lack of legal training,

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and lack of funds – describe the circumstances common to nearly all inmates.

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Also before the court is defendants’ motion (Doc. 19) for a stay of the court’s

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January 24, 2017, scheduling order. Defendants anticipate filing a motion for summary judgment

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arguing plaintiff’s failure to exhaust administrative remedies and seek a stay of discovery and

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related deadlines pending resolution of such motion. Defendants state that their motion

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regarding exhaustion will be filed by June 2, 2017. Good cause appearing therefor, defendants’

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request is conditionally granted. If defendants’ exhaustion motion is filed by June 2, 2017, the

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January 24, 2017, scheduling order will be stayed without further order of the court. Otherwise,

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the January 24, 2017, scheduling order will remain in effect.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s request for the appointment of counsel (Doc. 18) is denied; and

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2.

Defendants’ motion (Doc. 19) for a stay of the court’s January 24, 2017,

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scheduling order is conditionally granted as outlined above.

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DATED: May 24, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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