(PC) Johnson v. Scalia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL JOHNSON, Case No. 1:18-cv-00061-DAD-JDP 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. ECF No. 25 14 J. SCALIA, A. FRITZ, B. HACKWORTH, J. CAMPOS, ORDER DENYING MOTION TO COMPEL 15 A. ARANDA, and DOES 1-4, DISCOVERY 16 Defendants. ECF No. 26 17 ORDER DIRECTING RESPONSE TO SETTLEMENT REQUEST 18 THIRTY-DAY DEADLINE 19 20 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 21 under 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions to appoint counsel, ECF 22 No. 25, to compel discovery, ECF No. 26, and to refer the case for settlement, ECF No. 28. We 23 address each in turn below. 24 I. Appointment of Counsel 25 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 26 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 27 banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to 28 represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 1 296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 2 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 3 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court 4 will seek volunteer counsel only in exceptional circumstances. In determining whether such 5 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 6 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 8 The court cannot conclude that exceptional circumstances requiring the appointment of 9 counsel are present here. The allegations in the complaint are not exceptionally complicated. 10 Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims 11 adequately. Further, at this early stage in the proceedings, plaintiff has not demonstrated that he 12 is likely to succeed on the merits. 13 The court may revisit this issue at a later stage of the proceedings if the interests of justice 14 so require. If plaintiff later renews his request for counsel, he should provide a detailed 15 explanation of the circumstances that he believes justify appointment of counsel. 16 II. Discovery Dispute 17 On March 28, 2019, plaintiff moved to compel certain discovery, alleging that defendants 18 had not produced documents or responded to requests for admissions that plaintiff served on 19 January 17, 2019. See ECF No. 26. On April 24, 2019, defendants responded that such discovery 20 had been produced. See ECF No. 27. Plaintiff did not reply. Thus, plaintiff’s motion is denied 21 as moot. Should further discovery disputes arise, the parties must attempt to resolve them 22 informally before filing motions with the court. See Local Rule 251. 23 III. Settlement 24 Plaintiff moves the court for a settlement conference. ECF No. 28. Defendants have not 25 responded to this motion. The parties should discuss whether settlement in this case may be 26 feasible. After such discussion, defendants are to respond to plaintiff’s motion and indicate 27 whether they believe a settlement conference could be productive. Defendants’ response to 28 plaintiff’s motion is due in thirty days. 1 IV. Order 2 Accordingly, 3 1. Plaintiff's motion to appoint counsel is denied without prejudice. ECF No. 25. 4 2. Plaintiff's motion to compel certain discovery is denied as moot. ECF No. 26. 5 3. Defendants are directed to respond to plaintiff's settlement request, ECF No 28, 6 thirty days from the date of this order. 7 g IT IS SO ORDERED. ° g : —N prssann — Dated: _ August 6, 2019 10 UNIT#D STATES MAGISTRATE JUDGE 11 12 13 | No. 204 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28