(PC) Flores v. Herrera ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 NICHOLAS D. FLORES, No. 2:22-cv-2107 DAD SCR P 11 Plaintiff, 12 v. ORDER 13 G. HERRERA, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has moved for 17 appointment of counsel. Plaintiff also asks the court to re-schedule the settlement conference 18 which was vacated. For the reasons set forth below, plaintiff’s motion is denied. 19 I. Appointment of Counsel 20 The United States Supreme Court has ruled that under 28 U.S.C. § 1915 district courts 21 lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. 22 United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the 23 district court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Terrell v. 24 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 25 (9th Cir. 1990). 26 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 27 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 28 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 2 || common to most prisoners, such as lack of legal education and limited law library access, do not 3 || establish exceptional circumstances that would warrant a request for voluntary assistance of 4 || counsel. In the present case, the court does not find the required exceptional circumstances. 5 I. Other Requested Relief 6 Plaintiff moves the court to “not to enforce a settlement agreement” which includes an 7 || “invalid provision” and mentions the settlement conference previously set and vacated in this 8 || case. (ECF No. 33 at 1.) The court construes this portion of plaintiff's motion as requesting that 9 || the court reschedule the settlement conference. The settlement conference was vacated on 10 | August 7, 2024, upon defendants’ request and representation that settlement discussions would 11 | not be fruitful at this tme. (See ECF No. 29.) Plaintiff's request for relief will be denied, but the 12 | parties may in the future jointly request the court to set a settlement conference if the parties so 13 | agree. 14 In accordance with the above, IT IS HEREBY ORDERED that plaintiffs request for 15 || appointment of counsel and request to schedule settlement conference (ECF No. 33) are denied. 16 | DATED: September 8, 2024 Emdo 18 SEAN C. RIORDAN 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28