Williams v. Baker et al

Filing 69

ORDER on Recruitment of Counsel 66 , signed by Magistrate Judge Jeremy D. Peterson on 2/7/2020. (Orozco, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANNON WILLIAMS,

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Plaintiff,
v.

Case No. 1:16-cv-01540-DAD-JDP
ORDER ON RECRUITMENT OF COUNSEL
ECF No. 66

OFFICER BAKER,
Defendant.

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Plaintiff Shannon Williams is a federal prisoner proceeding without counsel and in forma

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pauperis in this civil rights action brought under Bivens v. Six Unknown Agents, 403 U.S. 388

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(1971). On May 14, 2019, the court ordered plaintiff to address whether his remaining Eighth

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Amendment allegations in plaintiff’s complaint state a claim upon which relief may be granted in

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light of Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). ECF No. 62. On August 13, 2019,

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plaintiff notified the court that he could not brief the Ziglar issue without access to legal

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materials, which he lacked while in a special or secure housing unit (“SHU”). ECF No. 64 at 1.

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On October 10, 2019, plaintiff requested appointment of counsel, stating that he remained in the

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SHU and still lacked access to certain legal materials. ECF No. 66.

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We will attempt to recruit counsel for the limited purpose of briefing the Ziglar issue.

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

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009), and the court lacks the authority to require an attorney
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to represent plaintiff, see Mallard v. U.S. District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). But we can, and in this case will, request the voluntary assistance of

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counsel. See 28 U.S.C. § 1915(e)(1).

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ANALYSIS

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Without a means to compensate counsel, the court seeks volunteer counsel only in

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exceptional circumstances. In determining whether such circumstances exist, the court “must

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evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir.

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1998).
The viability of plaintiff’s claim in light of Ziglar appears to be a close and undecided

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legal question. Plaintiff’s only remaining claim in this litigation is an Eighth Amendment claim

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for excessive force, brought under the authority of Bivens. See ECF Nos. 23, 50. Plaintiff alleges

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that defendant Baker, while handcuffing plaintiff, planted plaintiff’s arm on the ground and

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intentionally twisted it, causing severe injury. See ECF No. 12 at 3. Ziglar outlined a two-part

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test for determining when the Bivens remedy should be extended, which our circuit has

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characterized as follows: “First, courts must determine whether the plaintiff is seeking a Bivens

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remedy in a new context. If the answer to this question is ‘no,’ then no further analysis is

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required. If the answer is ‘yes,’ then the court must determine whether special factors counsel

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hesitation.” Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (internal citations and quotation

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marks omitted). The Ninth Circuit has not yet determined how either step should apply to a case

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like plaintiff’s, and courts appear to be grappling with similar issues as they struggle to apply the

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relevant Supreme Court precedent. See Carlson v. Green, 446 U.S. 14 (1980); Luis Buenrostro v.

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Fajardo, 770 F. App’x 807, 808 (9th Cir. 2019); Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir.

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2019); Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019); Rodriguez v. Swartz, 899

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F.3d 719, 748 (9th Cir. 2018). These issues are complex, moreover, and the court agrees with

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plaintiff’s own assessment that he will not be able to brief them adequately.

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ORDER

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Because the court has determined that this issue warrants counsel, we refer this case to

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Sujean Park, Pro Bono Director, to seek the voluntary assistance of counsel, for the limited

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purpose of seeking briefing on the proper application of Ziglar v. Abassi. If counsel is obtained,

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the court will determine a briefing schedule that includes the defendant.

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IT IS SO ORDERED.

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Dated:
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February 7, 2020
UNITED STATES MAGISTRATE JUDGE

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No. 205.

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