(PC) Driver v. ADA 1824 Panels ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR., Case No. 1:19-cv-01718-DAD-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO SET SETTLEMENT TELECONFERENCE 13 v. AND FOR APPOINTMENT OF COUNSEL 14 ADA 1824 PANELS, et al., (ECF No. 21) 15 Defendants. 16 17 Plaintiff Billy Driver, Jr. is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion requesting that the Court set this case for a 20 settlement teleconference and appoint counsel to represent him at the settlement teleconference. 21 (ECF No. 21.) 22 However, first, Plaintiff’s request to set this matter for a settlement teleconference is 23 premature. On December 16, 2019, the undersigned issued findings and recommendations 24 recommending that Plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 25 U.S.C. § 1915(g) and that Plaintiff be ordered to pay the $400.00 filing fee in full in order to 26 proceed with this action. (ECF No. 8.) Plaintiff filed written objections to the findings and 27 recommendations on January 21, 2020. (ECF No. 13.) Plaintiff’s application to proceed in forma 28 pauperis and the December 16, 2019 findings and recommendations remain pending before the 1 District Judge assigned to this action. Further, once the District Court either grants Plaintiff’s 2 application to proceed in forma pauperis or denies Plaintiff’s application to proceed in forma 3 pauperis and Plaintiff pays the filing fee in full, the Court will then screen Plaintiff’s complaint as 4 it is required to do pursuant to 28 U.S.C. § 1915A(a). Since the Court has not yet screened 5 Plaintiff’s complaint, the Court has not yet determined whether Plaintiff has stated at least one 6 cognizable claim for relief. Additionally, no defendant has appeared in this action. Therefore, 7 this action is not ready to be set for a settlement conference and, thus, Plaintiff’s motion for a 8 settlement teleconference is denied. Further, the Court’s settlement conferences are usually in- 9 person conferences and not via teleconference. 10 Second, with regards to Plaintiff’s motion for appointment of counsel, Plaintiff does not 11 have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 12 1525 (9th Cir. 1997), and the court cannot require any attorney to represent Plaintiff pursuant to 13 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern District of Iowa, 14 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional circumstances, the court may 15 request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525. 16 Without a reasonable method of securing and compensating counsel, the Court will seek 17 volunteer counsel only in the most serious and exceptional cases. In determining whether 18 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 19 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 20 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 21 “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. 22 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional 23 circumstances is on the plaintiff. Id. 24 The Court has considered Plaintiff’s request for appointed counsel, but does not find the 25 required exceptional circumstances. First, circumstances common to most prisoners, such as lack 26 of legal education, limited law library access, and lack of funds to hire counsel, do not alone 27 establish the exceptional circumstances that would warrant appointment of counsel. Second, 28 since the Court has not yet screened Plaintiff’s complaint, the Court cannot evaluate Plaintiff’s 1 || likelihood of success on the merits of his claims. Third, the Court has reviewed Plaintiff’ s 2 | complaint and finds that Plaintiffs claims do not appear to present novel or complex issues of 3 | substantive law and that Plaintiff has shown an ability to articulate his claims and litigate this 4 | action. Therefore, Plaintiff's motion for appointment of counsel must be denied, without 5 || prejudice. 6 Accordingly, it is HEREBY ORDERED that: 7 1. Plaintiffs motion to set this case for a settlement teleconference, (ECF No. 21), is 8 DENIED, as premature; and 9 2. Plaintiff's motion for appointment of counsel, (ECF No. 21), is DENIED, without 10 prejudice. 11 IT IS SO ORDERED. EF □□ (Se 13 | Dated: _February 21, 2020_ OO 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28