McDonald v. Yates et al

Filing 138

ORDER Denying 137 Motion for Appointment of Counsel for Settlement Conference, signed by Magistrate Judge Sheila K. Oberto on 6/5/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JIMMY MCDONALD,

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Plaintiff,

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CASE NO. 1:09-cv-00730-SKO PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL FOR
SETTLEMENT CONFERENCE

v.
J. A. YATES, et al.,

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(Doc. 137)
Defendants.
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Plaintiff Jimmy McDonald is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. On June 3, 2013, Plaintiff filed a motion seeking

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the appointment of counsel.

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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

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1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1981). In making this determination, the

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Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970

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(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is

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dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks

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omitted); Wilborn 789 F.2d at 1331.

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In the present case and at this stage in the proceedings, the Court does not find the required

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exceptional circumstances. Palmer, 560 F.3d at 970; Wilborn 789 F.2d at 1331. The Court

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recognizes Plaintiff’s concerns relating to the upcoming settlement conference set before United

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States Magistrate Judge Stanley A. Boone, but a settlement conference is not a complex proceeding

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in a case such as this and representation by counsel during the settlement conference is not necessary.

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Judge Boone will assist the parties in attempting to reach a mutually agreeable settlement agreement.

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Each side will have the opportunity, and likely multiple opportunities, to speak privately with Judge

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Boone and those conversations are confidential. As a result, Plaintiff will have ample opportunity

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to express his concerns privately to Judge Boone and also to benefit from Judge Boone’s extensive

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legal background.

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Cases such as this can and do settle, but Plaintiff may be assured that settlement will occur

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only if and when both sides are able reach an agreement. If they cannot agree, this case will proceed

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to trial on September 17, 2013.

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Based on the foregoing, the Court declines to appoint counsel in anticipation of the settlement

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conference set for June 12, 2013, and Plaintiff’s motion is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
i0d3h8

June 5, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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