(PC) Brown v. Reilly ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, No. 2:20-cv-1709 AC P 12 Plaintiff, 13 v. ORDER 14 A. REILLY, et al., 15 Defendants. 16 17 This case was recently reassigned to the undersigned and the trial set before the district 18 judge was vacated after the court received consent to magistrate judge jurisdiction from all 19 parties. ECF No. 167. In light of this case’s reassignment, the findings and recommendations 20 filed December 28, 2023 (ECF No. 148), are adopted herein by reference and plaintiff’s motion 21 for a temporary restraining order or preliminary injunction (ECF No. 129) will be denied. This 22 case will also be referred for a mandatory pretrial settlement conference and trial will now be set 23 before the undersigned. 24 Plaintiff has also recently filed a motion for appointment of counsel to represent him at 25 trial. ECF No. 165. The United States Supreme Court has ruled that district courts lack authority 26 to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. 27 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may 28 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 1 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 2 1990). 3 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 4 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 5 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 6 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 7 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 8 most prisoners do not establish exceptional circumstances that would warrant a request for 9 voluntary assistance of counsel. 10 Plaintiff has not put forth any grounds for appointment of counsel other than that the 11 attorney he believed would be representing him has stated that they have not in fact agreed to 12 represent him. ECF No. 165 at 2. This does not establish exceptional circumstances warranting 13 the appointment of counsel and the request for appointment of counsel for purposes of 14 representation at trial will be denied. However, in light of the impending trial and the referral of 15 this case for a settlement conference, the court finds this case would be benefitted by the 16 appointment of counsel for the limited purpose of representing plaintiff at the settlement 17 conference and this case will be referred to Sujean Park, Alternative Dispute Resolution 18 Coordinator, for the purpose of locating an attorney who is willing to accept this limited purpose 19 appointment. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The December 28, 2023 findings and recommendation (ECF No. 148) are adopted in 22 full and plaintiff’s motion for a temporary restraining order or preliminary injunction (ECF No. 23 129) is DENIED; 24 2. Plaintiff’s motion for appointment of counsel to represent him at trial (ECF No. 165) 25 is DENIED; 26 3. This case is referred for a mandatory settlement conference; 27 4. The Clerk of the Court is directed to contact Sujean Park, Alternative Dispute 28 Resolution Coordinator, for the purpose of locating an attorney admitted to practice in this court 1 | who is willing to accept a limited-purpose appointment to represent plaintiff at the settlement 2 || conference; 3 5. Sujean Park or another representative from the court will be contacting the parties to 4 || coordinate a date for the settlement conference; 5 6. The parties shall exchange trial exhibits at least thirty days before the first day of trial; 6 7. Motions in limine must be filed fourteen days prior to the first day of trial. Responses 7 || are due seven days after filing of the motion; 8 8. The parties are directed to Local Rule 162.1(a) and Local Rule 163(a) for procedures 9 || regarding proposed voir dire and proposed jury instructions, respectively. The parties shall file 10 || proposed voir dire and proposed jury instructions, if any, no less than fourteen days before the 11 | date set for trial; and 12 9. Jury trial is set for April 15, 2024, at 9:00 a.m. in Courtroom 26 before Magistrate 13 || Judge Allison Claire. Trial is anticipated to last three to four days. 14 | DATED: February 15, 2024 ~ 15 Chthwen— Clare ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28