Perrotte v. Johnson et al
Filing
110
ORDER DENYING Plaintiff's 108 Request for Appointment of Counsel, GRANTING 108 Request for Extension of Time to File Opposition, and DENYING, without Prejudice, Request for Settlement Conference signed by Magistrate Judge Stanley A. Boone on 11/28/2017. (Sant Agata, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JEFFREY P. PERROTTE,
12
Plaintiff,
13
14
v.
STACEY JOHNSON, et al.,
15
Defendants.
16
Case No.: 1:15-cv-00026-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S REQUEST FOR
APPOINTMENT OF COUNSEL, GRANTING
REQUEST FOR EXTENSION OF TIME TO FILE
OPPOSITION, AND DENYING, WITHOUT
PREJUDICE, REQUEST FOR SETTLEMENT
CONFERENCE
[ECF No. 108]
Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action
17
18
)
)
)
)
)
)
)
)
)
)
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for appointment of counsel, referral of case for
19
20
settlement conference, and request for extension of time to file a further opposition to Defendants’
21
exhaustion-related motion for summary judgment, filed November 20, 2017.
22
I.
Request for Appointment of Counsel
23
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
24
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent
25
plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
26
District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court
27
may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at
28
1525.
1
Without a reasonable method of securing and compensating counsel, the court will seek
1
2
volunteer counsel only in the most serious and exceptional cases. In determining whether
3
“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the
4
merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
5
legal issues involved.” Id. (internal quotation marks and citations omitted).
The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood
6
7
of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the
8
complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
9
1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). While a pro se litigant may be better
10
served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is
11
able to “articulate his claims against the relative complexity of the matter,” the “exceptional
12
circumstances” which might require the appointment of counsel do not exist. Rand v. Rowland, 113
13
F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied
14
appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly in the
15
realm of discovery and the securing of expert testimony.”) Based on the record in this case, Plaintiff is
16
able to articulate his claims and litigate this action. Circumstances common to most prisoners, such as
17
lack of financial resources, lack of legal education and limited law library access, do not establish
18
exceptional circumstances that would warrant a request for voluntary assistance of counsel.
19
Accordingly, Plaintiff’s second motion for appointment of counsel is DENIED, without prejudice.
20
II.
Settlement Conference
21
Plaintiff is advised that settlement offers and/or negotiations between the parties shall not be
22
filed with the Court and the parties are free to engage in ongoing settlement negotiations amongst
23
themselves. If both parties believe a settlement conference will be beneficial, they may contact the
24
Court and a settlement conference will be arranged. Accordingly, Plaintiff’s motion for settlement of
25
the case shall be denied, without prejudice.
26
///
27
///
28
///
2
1
III.
Extension of Time to File a Further Opposition
2
Although Plaintiff presents arguments relating to the pending motion for summary judgment,
3
Plaintiff seeks an extension of time to file a further opposition to Defendants’ motion for summary
4
judgment.
On the basis of good cause, the Court will grant Plaintiff thirty (30) days from the date of
5
6
service of this order to file an opposition to Defendants’ motion for summary judgment. However, no
7
further extension of time will be granted absent extraordinary circumstances, not present here.
8
9
10
11
IT IS SO ORDERED.
Dated:
November 28, 2017
UNITED STATES MAGISTRATE JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?