(PC) Sierra v. Spearman ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 FRANCISCO SIERRA, Case No. 1:17-cv-01691-ADA-EPG (PC) 11 Plaintiff, ORDER VACATING OCTOBER 11, 12 v. 2022 FINDINGS AND RECOMMENDATIONS TO DISMISS 13 CASE, DENYING REQUEST TO J. CASTELLANOS, APPOINT COUNSEL, AND SETTING PRETRIAL CONFERENCE 14 Defendant. (ECF Nos. 93, 94, 95) 15 16 17 Plaintiff Francisco Sierra is a state inmate proceeding pro se and in forma pauperis in this 18 civil rights action. Following the District Judge’s decision adopting this Court’s findings and 19 recommendations, this case now proceeds on Plaintiff’s cruel-and-unusual-punishment claim 20 against Defendant Castellanos. (ECF No. 70). 21 After Plaintiff failed to comply with the Court orders to file a pretrial statement, this Court 22 issued findings and recommendations on October 11, 2022, to dismiss this case with prejudice for 23 failure to comply with the Court’s orders and failure to prosecute the case. (ECF No. 93). Now 24 before the Court are Plaintiff’s timely objections, filed October 27, 2022. (ECF No. 94). 25 Generally, Plaintiff asserts that COVID protocols at his prison affected his access to the law 26 library and prevented the assistance he had been receiving from a fellow inmate so as to delay the 27 filing of his pretrial statement. (ECF No. 94). Plaintiff has now submitted his pretrial statement 28 and asks this Court to allow the case to proceed. (ECF No. 95, see ECF No. 94). 1 Although the Court is concerned about Plaintiff’s failure to abide by court orders or 2 request an extension to the deadline for his pretrial statement, it will vacate the findings and 3 recommendations to dismiss this case given Plaintiff’s pro se status and submission of his pretrial 4 statement. However, Plaintiff is advised that the Court expects him to be diligent in meeting all court-ordered deadlines going forward, and any failure to do so may result in the dismissal of this 5 case. 6 The Court notes that Plaintiff’s pretrial statement asks that counsel be appointed “to avoid 7 further delays and (or) complications” in this case and “humbly pleas for this case to be settled 8 already for $1,800.” (ECF No. 95, p. 17). 9 Regarding the request for counsel, Plaintiff does not have a constitutional right to 10 appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 11 withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), and the Court cannot require 12 an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 13 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 14 exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to 15 section 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, a district court must evaluate both the likelihood of success of 19 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. (citation and internal quotation marks omitted). 21 The Court will not order appointment of pro bono counsel at this time. The Court has 22 reviewed the record in this case, and at this time the Court is unable to make a determination that 23 Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can adequately articulate his claims. 24 Regarding Plaintiff’s request to settle this case for $1,800, the Court will direct the 25 Defendant to consider the offer and file the appropriate documents prior to the pretrial conference 26 should the parties reach a settlement. However, given the relatively low amount at issue and the 27 prior settlement conference in this case, the Court will not order a further settlement conference at 28 1 | this time. If Defendant believes such a conference would be useful after discussing settlement 2 | with Plaintiff, Defendant may file a request for a settlement conference. 3 Accordingly, IT IS ORDERED as follows: 4 1. The Court’s October 11, 2022 findings and recommendations (ECF No. 93) are vacated. 5 2. The pretrial conference (also called a telephonic trial confirmation hearing) shall be held 6 on January 9, 2023, at 1:30 p.m. before District Judge Ana de Alba. To participate 7 telephonically, the parties must dial into the conference at 1-888-557-8511 (access code 8 2219767) at the time of the hearing. Counsel for Defendant is required to arrange for the 9 participation of Plaintiff in the pretrial conference. 3. Should the parties settle the case before the pretrial conference, they are directed to file 8 the appropriate notice and dispositional documents as required by Local Rule 160. 4. Plaintiff's request for the appointment of counsel (ECF No. 95) is denied. 12 13 | ITIS SO ORDERED. "| pated: _ October 31, 2022 [sf Fahey — 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28