Khouanmany v. United States Marshals et al

Filing 87

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/6/2019 DENYING 84 without prejudice, request for the appointment of counsel. DENYING 83 request for discovery as premature, and Plaintiff's 84 request for a stay is DENIED without prejudice. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VILAYCHITH KHOUANMANY,

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No. 2:17-cv-1326-TLN-EFB P

Plaintiff,
v.

ORDER

UNITED STATES MARSHALS, et al.,
Defendants.

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Plaintiff is a federal prisoner proceeding pro se with claims premised under Bivens v. Six

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Unknown Named Agents, 403 U.S. 388 (1971). She has filed another request for appointment of

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counsel, a request to conduct discovery, and a motion to stay. ECF Nos. 83, 84. As explained

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below, the motions are denied.

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As has previously been explained, see ECF Nos 31, 42, 49, 60, 64, 67, 79, district courts

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lack authority to require counsel to represent indigent prisoners in cases such as this one. Mallard

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v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court

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may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1);

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

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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court

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must consider the likelihood of success on the merits as well as the ability of the plaintiff to

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articulate her claims pro se in light of the complexity of the legal issues involved. Palmer v.
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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors once again, the court

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still finds there are no exceptional circumstances in this case

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Plaintiff has also filed a request for “production of documents” and for a “subpoena duces

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tecum.” ECF No. 83. Plaintiff’s request is premature. The court has ordered service of the

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complaint by the U.S. Marshal. ECF No. 77. After a defendant files an answer to the complaint,

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the court will issue a discovery and scheduling order. Plaintiff may then seek documents from

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defense counsel and should file a motion asking for the court’s assistance only if she cannot

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obtain them through requests made pursuant to the ordinary discovery rules (Federal Rules of

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Civil Procedure 26-37 & 45).

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Plaintiff’s request for a stay is also denied. There are currently no deadlines in this case

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requiring action by plaintiff and her interest in pursuing discovery at this time undermines any

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actual need for a stay of proceedings.

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Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request for the appointment of counsel (ECF No. 84) is denied without
prejudice;

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2. Plaintiff’s request for discovery (ECF No. 83) is denied as premature; and

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3. Plaintiff’s request for a stay (ECF No. 84) is denied without prejudice.

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Dated: June 6, 2019.

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