McCoy v. Holguin et al

Filing 147

ORDER GRANTING Plaintiff's 144 Motion to Appoint Counsel, signed by Magistrate Judge Helena M. Barch-Kuchta on 04/13/2021. (Copy of this order forwarded to Sujean Park Castelhano) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAKEITH L. MCCOY,

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Plaintiff,

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Case No. 1:15-CV-768-DAD-HBK (PC)
ORDER GRANTING PLAINTIFF’S MOTION
TO APPOINT COUNSEL

v.
Doc. No. 144

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A. HOLGUIN, ET AL.,

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Defendants.

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Pending before the Court is plaintiff’s motion to appoint counsel, filed March 29, 2021.

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(Doc. No. 144). Plaintiff, who is proceeding pro se, is proceeding on his Second Amended 42

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U.S.C. § 1983 Complaint raising Eighth Amendment violations stemming from alleged use of

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excessive force and failure to intervene claims. (Doc. No. 15). Plaintiff, as a three-striker, paid

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the filing fee, as directed by the Court, and is not proceeding ifp in this action. (Doc. No. 61).1

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A settlement conference held on February 26, 2012 before the undersigned reached an impasse.

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(Doc. No. 142). Due to the continuing Covid-19 pandemic, the jury trial set for June 15, 2021

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was vacated, however the Court did set this case for a trial setting by teleconference on May 17,

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2021. (Doc. No. 143).

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Despite paying the filing fee, plaintiff nonetheless is indigent.

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Plaintiff seeks appointment of counsel stating exceptional circumstances. (Doc. No. 144 at

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3). Plaintiff identifies, inter alia, the following circumstances in support of his motion: (1) he has

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stated a claim; (2) the trial date set for June 15, 2021 has been vacated; (3) the pandemic has

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impacted his ability to prosecute this case and resulted in numerous deadlines being reset over

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plaintiff’s objections; (4) he has limited, meaningful access to the law library due to Covid

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restrictions; (5) he will be transferred to another penal institution; (6) the state court dismissed the

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criminal case that defendants were relying on to raise Heck v. Humphrey based affirmative defenses

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to his excessive force claim. (See id. at 3-4).

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The United States Constitution does not require appointment of counsel in civil cases. See

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Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not

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create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this Court has

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discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a civil

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action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for people

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unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 1978)

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(addressing relevant standard of review for motions to appoint counsel in civil cases) (other

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citations omitted). However, motions to appoint counsel in civil cases are granted only in

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“exceptional circumstances.” Id. at 1181. The Court may consider many factors including, but not

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limited to, proof of indigence, the likelihood of success on the merits, and the ability of the plaintiff

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to articulate his or her claims pro se in light of the complexity of the legal issues involved, to

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determine if exceptional circumstances warrant appointment of counsel. Id.; see also Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en

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banc, 154 F.2d 952 (9th Cir. 1998).

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As noted above, the matter is currently scheduled for a trial setting on May 17, 2021 at 1:30

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p.m. before District Judge Dale A. Drozd by telephone because the federal courts in the Eastern

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District of California remain closed until June 2021. While this case does not yet have a trial date

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scheduled, multiple attempts to resolve this matter through settlement have reached an impasse and

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trial is on the horizon. Additionally, the court confirmed upon review of the Superior Court of Kern

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County webpage, as plaintiff represents in the instant motion, that the state court dismissed
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plaintiff’s related pending criminal case on March 22, 2021. See State v. McCoy, Case No.

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MF012024A (Superior Court, Kern County). Based on the procedural posture of this case, the

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court finds exceptional circumstances and the interests of justice warrant the appointment of

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counsel for purposes of the trial setting and for trial in this case. The Court always encourages the

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parties to continue settlement negotiations and is willing to reschedule this case for another

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settlement conference in the interim period. If the parties believe a settlement conference may be

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mutually beneficial, defendants may contact chambers within seven (7) days from the date on this

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order.

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Accordingly, it is ORDERED:

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1. Plaintiff’s motion for the appointment of counsel (Doc. No. 144) is GRANTED for the

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limited purposes of trial, including the trial setting scheduled to occur on May 17, 2021 if counsel

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can be timely identified.

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2. The Clerk of Court shall ensure a copy of this order is provided to Sujean Park
Castelhano.

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3.

Defendants may contact Courtroom Deputy Kirstie Dunbar-Kari at kdunbar-

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[e-mail] within seven (7) days from the date on this order, if they wish the Court to

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schedule a settlement conference in the interim period.

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IT IS SO ORDERED.

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Dated:
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April 13, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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