(PC) Williams v. Baker ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON WILLIAMS, Case No. 1:16-cv-01540-DAD-JDP 12 Plaintiff, ORDER ON RECRUITMENT OF COUNSEL 13 v. ECF No. 66 14 OFFICER BAKER, 15 Defendant. 16 17 Plaintiff Shannon Williams is a federal prisoner proceeding without counsel and in forma 18 pauperis in this civil rights action brought under Bivens v. Six Unknown Agents, 403 U.S. 388 19 (1971). On May 14, 2019, the court ordered plaintiff to address whether his remaining Eighth 20 Amendment allegations in plaintiff’s complaint state a claim upon which relief may be granted in 21 light of Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). ECF No. 62. On August 13, 2019, 22 plaintiff notified the court that he could not brief the Ziglar issue without access to legal 23 materials, which he lacked while in a special or secure housing unit (“SHU”). ECF No. 64 at 1. 24 On October 10, 2019, plaintiff requested appointment of counsel, stating that he remained in the 25 SHU and still lacked access to certain legal materials. ECF No. 66. 26 We will attempt to recruit counsel for the limited purpose of briefing the Ziglar issue. 27 Plaintiff does not have a constitutional right to appointed counsel in this action, see Palmer v. 28 Valdez, 560 F.3d 965, 970 (9th Cir. 2009), and the court lacks the authority to require an attorney 1 to represent plaintiff, see Mallard v. U.S. District Court for the Southern District of Iowa, 490 2 U.S. 296, 298 (1989). But we can, and in this case will, request the voluntary assistance of 3 counsel. See 28 U.S.C. § 1915(e)(1). 4 ANALYSIS 5 Without a means to compensate counsel, the court seeks volunteer counsel only in 6 exceptional circumstances. In determining whether such circumstances exist, the court “must 7 evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate 8 his claims pro se in light of the complexity of the legal issues involved.” Rand v. Rowland, 113 9 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir. 10 1998). 11 The viability of plaintiff’s claim in light of Ziglar appears to be a close and undecided 12 legal question. Plaintiff’s only remaining claim in this litigation is an Eighth Amendment claim 13 for excessive force, brought under the authority of Bivens. See ECF Nos. 23, 50. Plaintiff alleges 14 that defendant Baker, while handcuffing plaintiff, planted plaintiff’s arm on the ground and 15 intentionally twisted it, causing severe injury. See ECF No. 12 at 3. Ziglar outlined a two-part 16 test for determining when the Bivens remedy should be extended, which our circuit has 17 characterized as follows: “First, courts must determine whether the plaintiff is seeking a Bivens 18 remedy in a new context. If the answer to this question is ‘no,’ then no further analysis is 19 required. If the answer is ‘yes,’ then the court must determine whether special factors counsel 20 hesitation.” Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (internal citations and quotation 21 marks omitted). The Ninth Circuit has not yet determined how either step should apply to a case 22 like plaintiff’s, and courts appear to be grappling with similar issues as they struggle to apply the 23 relevant Supreme Court precedent. See Carlson v. Green, 446 U.S. 14 (1980); Luis Buenrostro v. 24 Fajardo, 770 F. App’x 807, 808 (9th Cir. 2019); Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir. 25 2019); Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019); Rodriguez v. Swartz, 899 26 F.3d 719, 748 (9th Cir. 2018). These issues are complex, moreover, and the court agrees with 27 plaintiff’s own assessment that he will not be able to brief them adequately. 28 1 ORDER 2 Because the court has determined that this issue warrants counsel, we refer this case to 3 | Sujean Park, Pro Bono Director, to seek the voluntary assistance of counsel, for the limited 4 | purpose of seeking briefing on the proper application of Ziglar v. Abassi. If counsel is obtained, 5 | the court will determine a briefing schedule that includes the defendant. 6 7 IT IS SO ORDERED. yi, —N prssann — Dated: _ February 7, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 12 | No. 205. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28