(PC) Wolinski v. Abdulgader

• Court: District Court, E.D. California
• Decided: April 24, 2024
• Docket: 2:21-cv-02078
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRZYSZTOF F. WOLINSKI, No. 2:21-cv-02078-DJC-CKD P 12 Plaintiff, 13 v. ORDER 14 ABDULBASET ABDULGADER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. The parties have filed various motions which the court 19 will address in turn. 20 The first motion pending before the court is plaintiff’s motion for a 60 day stay of 21 proceedings, or, in the alternative, the appointment of co-counsel during the dispositive motion 22 phase of the case. ECF No. 55. The court first notes that the requested time period has already 23 passed since this motion was docketed on December 27, 2023. Moreover, plaintiff does not seek 24 an extension of any specific deadline in this case. For these reasons, the court denies the motion 25 for a 60 day stay of proceedings. 26 The same motion also requests the appointment of counsel. District courts lack authority 27 to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 28 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 1 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 2 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 3 1990). When determining whether “exceptional circumstances” exist, the court must consider 4 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 5 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 6 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 7 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 8 common to most prisoners, such as lack of legal education and limited law library access, do not 9 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 10 Having considered the factors under Palmer, the court finds that plaintiff has failed to 11 meet his burden of demonstrating exceptional circumstances warranting the appointment of 12 counsel at this time. 13 Also pending before the court is defendants’ motion to modify the discovery and 14 scheduling order governing this case. ECF No. 56. Defendants request that the court vacate all 15 deadlines in this case pending resolution of their concurrently filed motion to compel because 16 plaintiff has not responded to any of their written discovery requests. ECF Nos. 56, 57. Pursuant 17 to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order “may be modified only 18 for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). This good cause standard 19 “primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 20 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order 21 “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id. 22 In this case, defendants have demonstrated good cause for modifying the discovery and 23 scheduling order due to plaintiff’s complete lack of response to their written discovery requests. 24 The court will grant defendants’ motion and vacate all pending deadlines governing this case until 25 further order of the court. 26 Plaintiff has also filed a motion for an extension of time to file a response to defendants’ 27 motion to compel. ECF No. 58. In the motion, plaintiff indicates that he is having difficulty 28 obtaining access to the ADA computer at the prison law library. For good cause shown, the court 1 | grants the requested extension of time. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion for a stay and the appointment of counsel (ECF No. 55) is denied. 4 2. Defendants’ motion to modify the Discovery and Scheduling Order (ECF No. 56) is 5 || granted. All pending deadlines are vacated pending the resolution of defendants’ motion to 6 || compel. The court will reset these deadlines by subsequent order. 7 3. Plaintiff's motion for an extension of time (ECF No. 58) to file an opposition to 8 | defendants’ motion to compel is granted. 9 4. Plaintiff is granted thirty days from the date of this order in which to file a response to 10 || defendants’ motion to compel. No further extensions of time will be granted. 11 5. Defendants may file a reply within 14 days from the date of filing of plaintiffs 12 || response. 13 6. Defendants’ motion to compel will be submitted on the papers at the expiration of the 14 | briefing deadlines set herein. 15 | Dated: April 24, 2024 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 12/woli2078.31+36 24 25 26 27 28