(PC) Mitchell v. Diaz ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN E. MITCHELL, Case No. 1:22-cv-00006-JLT-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR ALTERNATIVE DISPUTE v. RESOLUTION AND/OR FOR APPOINTMENT 14 OF PRO BONO COUNSEL R. DIAZ, et al., (ECF No. 18) 15 Defendants. 16 17 18 John Mitchell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action. 19 On March 21, 2022, Plaintiff filed a motion for alternative dispute resolution and/or for 20 appointment of pro bono counsel to represent him during the alternative dispute resolution 21 process (with the option of retaining counsel to represent him in the case if no resolution is 22 reached). (ECF No. 18). Plaintiff asks that this case be referred to alternative dispute resolution, 23 and/or for appointment of pro bono counsel, because his mental state is fragile; because he 24 suffered retaliation while he litigated his civil rights claims and after he litigated his civil rights 25 claims; and because Plaintiff’s civil rights are being violated repeatedly, and in the same way. 26 Plaintiff tried to contact the University of the Pacific, McGeorge School of Law Mediation Clinic, 27 but Plaintiff believes they never received his letters. 28 As to Plaintiff’s request for this case be referred to alternative dispute resolution, this case 1 is still at the screening stage. No defendants have been served. Accordingly, the Court will not 2 refer this case to alternative dispute resolution at this time. 3 As to Plaintiff’s request for appointment of pro bono counsel, Plaintiff does not have a 4 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 5 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), and the Court 6 cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 7 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). 8 However, in certain exceptional circumstances the Court may request the voluntary assistance of 9 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 10 Without a reasonable method of securing and compensating counsel, the Court will seek 11 volunteer counsel only in the most serious and exceptional cases. In determining whether 12 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 15 The Court will not order appointment of pro bono counsel at this time. The Court has 16 reviewed the record in this case, and at this time the Court is unable to make a determination that 17 Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 18 adequately articulate his claims. 19 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 20 pro bono counsel at a later stage of the proceedings. 21 For the foregoing reasons, IT IS ORDERED that: 22 1. Plaintiff’s request for this case be referred to alternative dispute resolution is 23 DENIED; and 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 2. Plaintiffs request for appointment of pro bono counsel is DENIED without 2 prejudice. 3 4 IT IS SO ORDERED. S| Dated: _ March 23, 2022 hey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28