(PC) Borbon v. Smiley ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO BORBON, No. 2:19-cv-1464 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 D. SMILEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Pending before the court is plaintiff’s June 1, 2021 “motion for appointment of counsel 19 for settlement conference.” (ECF No. 58.) For the reasons stated herein, this motion is denied. 20 On February 25, 2021, a settlement conference was held in this action. This action did not 21 settle. This action is now scheduled for an evidentiary hearing before the undersigned on 22 September 13, 2021. (ECF No. 57.) 23 To the extent the pending motion seeks a further settlement conference, the undersigned 24 finds that a further settlement conference is not warranted. However, plaintiff may contact 25 defense counsel regarding a proposed settlement. If both parties consent, the undersigned will 26 consider scheduling a further settlement conference. 27 To the extent plaintiff requests appointment of counsel, district courts lack authority to 28 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 1 |} Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 2 || attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 3 || 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 4 | 1990). When determining whether “exceptional circumstances” exist, the court must consider 5 || plaintiffs likelihood of success on the merits as well as the ability of the plaintiff to articulate his 6 || claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 7 || 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 8 | The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 9 || common to most prisoners, such as lack of legal education and limited law library access, do not 10 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 11 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 12 | burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 13 | time. 14 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 15 || counsel for a settlement conference (ECF No. 58) is denied without prejudice. 16 | Dated: June 10, 2021 Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 50 borb 1464.31 21 22 23 24 25 26 27 28