(PC) John E. Mitchell v. Baeza ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARD MITCHELL, Case No. 1:20-cv-00857-DAD-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR ALTERNATIVE DISPUTE 13 v. RESOLUTION AND/OR FOR APPOINTMENT OF COUNSEL 14 H. BAEZA, C. GUITERREZ, E. MORENO, M. BASS, J. HUEWE, J. (Doc. No. 24) 15 VARGAS, J. VALENCIA-MENDOZA, A. PARRA, 16 Defendants. 17 18 Plaintiff, John Edward Mitchell, is a current state prisoner proceeding pro se on his first 19 amended complaint filed under 42 U.S.C. § 1983. (Doc. No. 10). Pending before the Court is 20 Plaintiff’s motion for alternative dispute resolution and/or for appointment of counsel. (Doc. No. 21 24). 22 Plaintiff requests the Court refer his case to alternative dispute resolution. (Id. at 1-3). 23 This case is still at the screening stage and no defendants have been served. See generally docket. 24 Thus, Plaintiff’s request for alternative dispute resolution is premature. 25 Plaintiff also seeks appointment of counsel to represent him at an alternative dispute 26 resolution with the option and, if his case is not resolved at an alternative dispute resolution, to 27 continue his representation on the basis: (1) his mental state is fragile and he suffers from 28 “mental health deficiencies”; (2) he suffered retaliation while he litigated past civil rights claims; 1 and (3) he unsuccessfully attempted to obtain counsel from the University of the Pacific, 2 McGeorge School of Law Mediation Clinic. (Id. at 2-3). 3 The United States Constitution does not require appointment of counsel in civil cases. See 4 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 5 create a right to appointment of counsel in civil cases). This Court has discretionary authority 6 under 28 U.S.C. § 1915 to appoint counsel for an indigent to commence, prosecute, or defend a 7 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 8 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 9 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 10 citations omitted). However, motions to appoint counsel in civil cases are granted only in 11 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 12 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 13 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 14 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 15 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 16 banc, 154 F.2d 952 (9th Cir. 1998). The Court “is not required to articulate reasons for denying 17 appointment of counsel if the reasons are clear from the record.” Johnson v. United States Dept. 18 of Treasury, 939 F.2d 820, 824 (9th Cir.1991) 19 Plaintiff has failed to demonstrate that exceptional circumstances warrant appointment of 20 counsel. Plaintiff does not indicate the nature of his alleged “mental health deficiencies” or how 21 such “deficiencies” affect his ability to prosecute this action. (See Doc. No. 24 at 2-3). Indeed, a 22 review of the pleadings filed by Plaintiff to date show he can articulate his claims in this case. 23 See Brown v. Reif, 2019 WL 989874, at *2 (E.D. Cal. Mar. 1, 2019) (denying appointment of 24 counsel where plaintiff’s filing demonstrate ability to properly litigate case despite mental 25 illness); see also West v. Dizon, 2014 WL 1146569, at *4 (E.D. Cal. Jan. 9, 2014) (explaining that 26 there are no extraordinary circumstances that justify appointing plaintiff counsel who alleges a 27 mental disability without any supporting evidence to detail the nature or effects of the alleged 28 mental disability). Plaintiff argues that the appointment of counsel will allow him to prosecute 1 | his case without fear of retaliation. (See Doc. No. 24 at 2-3). Plaintiffs claims involve events 2 | that occurred why he was imprisoned at California State Prison-Corcoran. (See generally Doc. 3 | No. 10). Plaintiff has since been transferred from California State Prison-Corcoran to Kern 4 | Valley State Prison, reducing the possibility of retaliation in response to Plaintiff prosecuting this 5 || action. (Doc. Nos. 22 and 23); see Christ v. Deberry, 2011 WL 43582, *4 (E.D. Cal. Jan. 6, 6 | 2011) (denying plaintiff's request for appointing counsel because possibility of retaliation against 7 | plaintiff for pursuing his case was reduced since he was transferred to a different institution). 8 | Finally, Plaintiff's inability to obtain counsel is not “a proper factor for the Court to consider in 9 | determining whether to request counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. 10 | Cal. Apr. 20, 2010). Should this case progress and Plaintiff's circumstances change so that he is 11 | able to demonstrate exceptional circumstances, he may renew his motion for appointment of 12 || counsel at that time. 13 Accordingly, it is ORDERED: 14 Plaintiff's motion for ADR and to appoint counsel (Doc. No. 24) is DENIED without 15 || prejudice. 16 '7 | Dated: _ April 7. 2022 Mila Wh fareh Base 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28