(PC) Allen v. Bentacourt ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ALLEN, No. 1:18-cv-01187 JLT GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL 13 v. AND DENIAL OF REQUEST TO SETTLE 14 V. BENTACOURT, (ECF No. 71) 15 Defendants. DEFENDANTS’ NOTICE RELATED TO PARTICIPATING IN SETTLEMENT 16 DISCUSSIONS WITH PLAINTIFF DUE JUNE 4, 2024 17 PLAINTIFF’S NOTICE OF CHANGE OF 18 ADDRESS AND SERVICE OF IT ON DEFENDANTS DUE JUNE 4, 2024 19 20 21 Plaintiff has requested the appointment of counsel. ECF No. 71. This is Plaintiff’s fifth 22 request for appointment of counsel. See ECF Nos. 29, 33, 52, 62. In the motion, Plaintiff also 23 makes an alternative request to settle this case. See ECF No. 71 at 3. 24 For the reasons stated below, Plaintiff’s motions will be denied. However, given the age 25 of this case, Plaintiff’s recent release from custody and his inclusion of the word “settle” in his 26 motion, the Court will direct Defendants to file a statement indicating whether based on the 27 information they currently have they are open to participating in settlement discussions with 28 1 Plaintiff. 2 I. MOTION FOR THE APPOINTMENT OF COUNSEL; REQUEST TO SETTLE 3 In support of the motion, Plaintiff states that he has been released from county jail after 4 serving twenty-nine years. ECF No. 71 at 2. In addition, Plaintiff states that he is currently 5 homeless and that as a result he is using the location of his parole agent’s office as his mailing 6 address. Id. Plaintiff further states that he has a good Eighth Amendment case. He asks for the 7 appointment of counsel so that he can have his day in court or settle. See generally ECF No. 71 8 at 3-4. 9 II. DISCUSSION 10 A. Applicable Law 11 District courts lack authority to require counsel to represent indigent prisoners in section 12 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 13 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 14 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 15 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 16 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 17 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 18 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 19 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 20 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 21 legal education and limited law library access, do not establish exceptional circumstances that 22 warrant a request for voluntary assistance of counsel. 23 B. Analysis 24 1. Motion for the Appointment of Counsel 25 The fact that Plaintiff has recently been released from jail after a long sentence is 26 insufficient to warrant the appointment of counsel. This case has been on the Court’s docket 27 since 2018 (see ECF No. 1) (original complaint), and since then, despite not having been afforded 28 counsel, Plaintiff has managed to move this case to the discovery phase of the proceedings, even 1 successfully appealing part of his case in the Ninth Circuit. See ECF Nos. 41-43, 45 (appeal 2 documents; Circuit affirmation in part; reversal in part, and remand). In addition he has 3 successfully filed this current motion. 4 The fact that this matter has survived up to this phase of the proceedings indicates that it 5 could be successful on its merits. However, despite Plaintiff’s assertion that he was just released 6 from jail and is now unfortunately homeless, this situation still does not merit the appointment of 7 counsel. Therefore, having considered the factors under Palmer, the Court finds that Plaintiff has 8 failed to meet his burden of demonstrating exceptional circumstances, thus his request for the 9 appointment of counsel will again be denied. 10 2. Alternative Request to Settle Matter 11 Plaintiff’s apparent alternative request that this matter settle may be premature as this case 12 appears to be in the earlier stages of discovery, and to date there has been no indication that 13 Defendants are open to settling it. However, given the length of time that this matter has been on 14 the docket, as well as the fact that Plaintiff has been recently released from incarceration and 15 appears open to settling the matter, the Court will direct Defendants to inform the Court if they 16 are receptive to engaging in settlement discussions. 17 Defendants will be given fourteen days to do so. In addition, because Defendants have 18 recently stated that they do not have a current address for Plaintiff (see ECF No. 69-1 at 2, 4) 19 (Defendants’ motion to modify scheduling order), and because Plaintiff has stated that he is 20 homeless but is using his parole agents address, within the same fourteen days, Plaintiff will be 21 ordered to file a change of address with the Court and to serve it on Defendants. If possible, 22 Plaintiff should also provide Defendants with a working phone number where he can be reached 23 by Defendants’ counsel. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s request for the appointment of counsel (ECF No. 71 at 1-4) is DENIED; 26 2. Plaintiff’s request that this matter be settled (ECF No. 71 at 3) is DENIED, and 27 3. Within fourteen days from the date of this order – by June 4, 2024, – the following 28 shall be done: 1 a. Defendants shall INFORM THE COURT whether they are open to participating in 2 settlement discussions with Plaintiff, and 3 b. Plaintiff shall FILE A CHANGE OF ADDRESS with the Court and serve a copy 4 of the filing on Defendants. If possible, Plaintiff shall also provide counsel for Defendants with a 5 current phone number where he may be contacted. 6 7 IT IS SO ORDERED. 8 9 Dated: May 21, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28