(PC) Bowcut v. Daram ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD RAY BOWCUT, No. 2:21-cv-0736 DB P 12 Plaintiff, 13 v. ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights complaint 18 under 42 U.S.C. § 1983. Presently before the court is plaintiff’s motion to compel defendants to 19 participate in an Alternative Dispute Resolution (“ADR”) settlement conference (ECF No. 21) 20 and motion to appoint counsel (ECF No. 22). 21 MOTION TO COMPEL ADR SETTLEMENT CONFERENCE 22 Plaintiff requests that the court “compel defendants to attend the court ordered ‘ADR’” on 23 the grounds that a settlement conference may help avoid some of the “economic burdens and 24 delays” litigation can impose. (ECF No. 21 at 1-2.) The court previously ordered this action 25 stayed in order to conduct an ADR settlement conference. (ECF No. 14.) Defendants later filed a 26 motion to opt out on the basis that after reviewing “[p]laintiff’s claims, the medical records, and 27 applicable law” it would be in the best interest of defendants to defer any settlement discussion 28 //// 1 until after discovery. (ECF No. 18-1 at 3.) The court found defendants had presented good cause 2 to grant the motion, lifted the stay, and ordered defendants to file answer or other responsive 3 pleadings. (ECF No. 19 at 2.) 4 Plaintiff’s motion does not present a convincing argument for why the court should 5 compel defendants’ participation in a settlement conference at this time. The court does have the 6 power to compel a party to participate in a settlement conference. Fed. R. Civ. P. 16(c)(1); 7 United States v. U.S. Dist. Court, 694 F.3d 1051, 1057-58 (9th Cir. 2012). However, defendants 8 have represented that a settlement conference would not be worthwhile until formal discovery 9 permits further investigation of plaintiff’s claims. (ECF No. 12-1 at 3.) Plaintiff’s deliberate 10 indifference claim involves important factual questions. For example, evidence is vital to proving 11 or disproving the existence of a serious medical need and defendants’ knowledge of that need. 12 Farmer v. Brennan, 511 U.S. 825, 834 (1994). As such, defendants presented good cause to opt 13 out of ADR settlement. 14 Forcing defendants to participate in a settlement conference before they are able to 15 investigate these factual issues fully through discovery does not seem likely to be a productive 16 exercise. Plaintiff’s bare assertion that the “costs and burdens impossed [sic] on the courts and 17 public” weigh in favor of conducting a settlement conference is not a sufficiently persuasive 18 argument in light of defendants’ assertion that discovery is necessary. (ECF No. 21 at 2.) 19 Defendants are unlikely to be willing or able to fully engage in settlement discussions before they 20 are able to fully investigate plaintiff’s claims. Defendants claim that factual discovery is 21 necessary for them to assess these claims. (ECF No. 18-1 at 3.) Thus, it does not appear to be in 22 the interest of the parties’ or court’s time to compel participation in a settlement conference at this 23 time. 24 Accordingly, plaintiff’s motion will be denied. However, this does not preclude the 25 possibility of a settlement conference at a later stage of these proceedings, whether by agreement 26 of both parties or by order of the court. 27 //// 28 //// 1 MOTION TO APPOINT COUNSEL 2 Plaintiff asks the court to appoint counsel to assist him with the present action.1 (ECF No. 3 22.) The United States Supreme Court has ruled that district courts lack authority to require 4 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 5 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 6 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 7 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 8 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 9 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 10 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 11 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 12 common to most prisoners, such as lack of legal education and limited law library access, do not 13 establish exceptional circumstances that would warrant a request for voluntary assistance of 14 counsel. 15 In the present case, the court does not find the required exceptional circumstances. So far, 16 plaintiff has been able to successfully articulate his claims pro se. (See ECF Nos. 1, 8.) The legal 17 issues involved in this case do not appear to be highly complex as plaintiff is only pursuing a 18 medical needs claim against three defendants. Thus, the exceptional circumstances required for 19 the court to request voluntary assistance of counsel do not appear present at this time. 20 Plaintiff’s motion for appointment of counsel will be denied without prejudice to its 21 renewal at a later stage of these proceedings. 22 //// 23 //// 24 //// 25 1 In his motion plaintiff requests the appointment of counsel “pursuant to Government Code 26 section 15421 and Penal Code section 1240.” (ECF No. 22 at 1.) This appears to reference 27 California law regarding the appointment of counsel. As this case is presently brought in federal court under 42 U.S.C. § 1983, a federal cause of action, this motion is not properly brought under 28 these state statutes. 1 CONCLUSION 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion to compel defendants’ participation in a settlement conference (ECF 4 No. 21) is denied. 5 2. Plaintiff's motion for the appointment of counsel (ECF No. 22) is denied without 6 prejudice. 7 || Dated: May 16, 2022 8 9 10 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 DB/DB Prisoner Inbox/Civil Rights/R/bowc0736.compel.ADR+.31 15 16 17 18 19 20 21 22 23 24 25 26 27 28