Johnson v. Scalia et al

Filing 32

ORDER DENYING 25 Motion to Appoint Counsel; ORDER DENYING 26 Motion to Compel Discovery; ORDER DIRECTING Response to Settlement Request; Thirty (30) Day Deadline signed by Magistrate Judge Jeremy D. Peterson on 8/6/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARL JOHNSON,
Plaintiff,

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v.

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ORDER DENYING MOTION TO APPOINT
COUNSEL
ECF No. 25

J. SCALIA, A. FRITZ,
B. HACKWORTH, J. CAMPOS,
A. ARANDA, and DOES 1-4,
Defendants.

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Case No. 1:18-cv-00061-DAD-JDP

ORDER DENYING MOTION TO COMPEL
DISCOVERY
ECF No. 26
ORDER DIRECTING RESPONSE TO
SETTLEMENT REQUEST

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THIRTY-DAY DEADLINE

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions to appoint counsel, ECF

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No. 25, to compel discovery, ECF No. 26, and to refer the case for settlement, ECF No. 28. We

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address each in turn below.

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I.

Appointment of Counsel
Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en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.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to

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represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S.
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296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C.

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§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

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counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court

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will seek volunteer counsel only in exceptional circumstances. In determining whether such

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circumstances exist, “the district court must evaluate both the likelihood of success on the merits

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

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legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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The court cannot conclude that exceptional circumstances requiring the appointment of
counsel are present here. The allegations in the complaint are not exceptionally complicated.

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Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims

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adequately. Further, at this early stage in the proceedings, plaintiff has not demonstrated that he

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is likely to succeed on the merits.

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The court may revisit this issue at a later stage of the proceedings if the interests of justice

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so require. If plaintiff later renews his request for counsel, he should provide a detailed

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explanation of the circumstances that he believes justify appointment of counsel.

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II.

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Discovery Dispute
On March 28, 2019, plaintiff moved to compel certain discovery, alleging that defendants

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had not produced documents or responded to requests for admissions that plaintiff served on

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January 17, 2019. See ECF No. 26. On April 24, 2019, defendants responded that such discovery

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had been produced. See ECF No. 27. Plaintiff did not reply. Thus, plaintiff’s motion is denied

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as moot. Should further discovery disputes arise, the parties must attempt to resolve them

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informally before filing motions with the court. See Local Rule 251.

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III.

Settlement
Plaintiff moves the court for a settlement conference. ECF No. 28. Defendants have not

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responded to this motion. The parties should discuss whether settlement in this case may be

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feasible. After such discussion, defendants are to respond to plaintiff’s motion and indicate

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whether they believe a settlement conference could be productive. Defendants’ response to

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plaintiff’s motion is due in thirty days.
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IV.

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Order
Accordingly,

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1. Plaintiff’s motion to appoint counsel is denied without prejudice. ECF No. 25.

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2. Plaintiff’s motion to compel certain discovery is denied as moot. ECF No. 26.

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3. Defendants are directed to respond to plaintiff’s settlement request, ECF No 28,

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thirty days from the date of this order.

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IT IS SO ORDERED.

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Dated:
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August 6, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 204

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