Williams v. Harrington et al

Filing 145

ORDER DENYING Plaintiff's 142 Motion to Appoint Pro Bono Counsel and VACATING the deadline to file Pretrial Statements, the deadline for Plaintiff to Submit Money Orders, and the Telephonic Trial Confirmation Hearing, signed by Magistrate Judge Erica P. Grosjean on 03/07/17.(Telephonic Scheduling Conference set for April 11, 2017 at 10:00 a.m. at the Robert E. Coyle Federal Courthouse, 2500 Tulare Street, Fresno, CA 93721 in Courtroom #10) (Martin-Gill, S)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

MARCUS R. WILLIAMS,

13

Plaintiff,

14
15

v.
S. RIOS and S. STEWART,
Defendants.

16
17

1:12-cv-00226-LJO-EPG (PC)
ORDER DENYING PLAINTIFF’S REQUEST
FOR APPOINTMENT OF PRO BONO
COUNSEL AND VACATING THE
DEADLINE TO FILE PRETRIAL
STATEMENTS, THE DEADLINE FOR
PLAINTIFF TO SUBMIT MONEY ORDERS,
AND THE TELEPHONIC TRIAL
CONFIRMATION HEARING
(ECF NO. 142)

18
19
20
21
22
23
24
25

Marcus Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. § 1983. On March 3, 2017, Plaintiff filed a
motion for appointment of pro bono counsel and for an extension of time to file his pretrial
statement and to submit the money orders that are required for the attendance of unincarcerated
witnesses who refuse to testify voluntarily.1 (ECF No. 142).
According to Plaintiff, on February 14, 2017, Plaintiff was transferred to Corcoran State

26
1

27
28

The Court notes that if Plaintiff wanted to obtain the attendance of unincarcerated witnesses who refused
to testify voluntarily he was supposed to notify the Court of their names and locations by January 31, 2017. (ECF
No. 115, p. 5).
1

1

Prison so that he could attend the settlement conference that was held on February 17, 2017. The

2

settlement conference was held, the case did not settle, and Plaintiff was sent back to Corcoran

3

State Prison. Plaintiff spoke to an Administrative Segregation Unit Correctional Counselor, who

4

informed Plaintiff that he would be returned to California Men’s Colony on the week of March 6,

5

2017, but the Correctional Counselor could not be certain when Plaintiff would be returned

6

because “she is not ‘in charge of transportation.’” Plaintiff does not have access to his personal

7

property or his legal work at Corcoran State Prison. Accordingly, Plaintiff has been unable to

8

draft his pretrial statement or make any other pretrial preparations. Additionally, Plaintiff asserts

9

that he is not skilled or experienced in the matters of negotiations, pretrial preparations, or trial

10

proceedings.

11

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

12

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

13

(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

14

U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

15

490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request

16

the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

17

Without a reasonable method of securing and compensating counsel, the Court will seek

18

volunteer counsel only in the most serious and exceptional cases.

19

Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

20

the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

21

complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).

22
23
24
25
26
27
28

In determining whether

The Court will not order appointment of pro bono counsel at this time. First, there is a
settlement conference scheduled for March 24, 2017. If the case settles at this conference there will
be no need to appoint counsel for Plaintiff. Moreover, based on the record in this case, the Court
finds that Plaintiff can adequately articulate his claims and respond to court orders. Plaintiff is
advised that he is not precluded from renewing the motion for appointment of pro bono counsel at a
later stage of the proceedings if settlement is unsuccessful.
As to Plaintiff’s request for an extension of time, the Court finds good cause to grant the
2

1

extension. However, because granting an extension of time to file the pretrial statement would mean

2

that the pretrial statement is due after the telephonic trial confirmation hearing, the Court will vacate

3

the telephonic trial confirmation hearing, the deadline for the parties to file their pretrial statements,

4

and the deadline for Plaintiff to submit the money orders that are required to obtain the attendance

5

of unincarcerated witnesses who refuse to testify voluntarily. If the case does not settle at the

6

upcoming settlement conference, the Court will hold a telephonic scheduling conference on April

7

11, 2017, at 10:00 a.m.

8

At this time, the trial date remains in place.

9

For the foregoing reasons, IT IS ORDERED that:

10

1. Plaintiff’s request for appointment of pro bono counsel is DENIED without prejudice;

11

2. The telephonic trial confirmation hearing is VACATED;

12

3. The deadline for the parties to file their pretrial statements is VACATED;

13

4. The deadline for Plaintiff to submit the money orders that are required to obtain

14

the attendance of unincarcerated witnesses who refuse to testify voluntarily is

15

VACATED;

16

5. The Court will hold a telephonic scheduling conference on April 11, 2017, at

17

10:00 a.m. at the Robert E. Coyle Federal Courthouse, 2500 Tulare Street, Fresno,

18

CA 93721 in Courtroom #10; and

19

6. Plaintiff must appear telephonically at the telephonic scheduling conference on

20

April 11, 2017. Defendants may either appear in person or telephonically. To

21

appear telephonically, the parties are directed to use the following dial-in number

22

and passcode: 1-888-251-2909; passcode 1024453.

23

IT IS SO ORDERED.

24
25

Dated:

March 7, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

26
27
28
3