Barbour v. United States of America

Filing 50

ORDER DENYING 49 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 4/7/2021. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT BARBOUR,

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Plaintiff,
v.
UNITED STATES OF AMERICA,

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Case No. 1:18-cv-00246-AWI-BAM (PC)
ORDER DENYING MOTION TO APPOINT
COUNSEL
(ECF No. 49)

Defendant.

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Plaintiff Scott Barbour (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

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This action proceeds against Defendant United States of America on Plaintiff’s claim for failure

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to patrol.

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Currently before the Court is Plaintiff’s motion to appoint counsel, filed April 5, 2020.

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(ECF No. 49.) In his motion, Plaintiff states that he is requesting appointment of counsel for the

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sole purposes of helping Plaintiff conduct discovery, engage in settlement negotiations, and if

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necessary, try the case. Plaintiff asserts that his likelihood of success on the merits in this case is

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extremely high, as the Court has found that Plaintiff stated a cognizable civil rights claim and

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survived Defendant’s jurisdiction challenge, and Plaintiff believes it is unlikely the Court would

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have ordered post-screening ADR if it felt that Plaintiff’s case was weak. Furthermore, Plaintiff

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states that defense counsel made a counter settlement offer in an exchange of letters between the
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parties, and believes that the issue seems to be more about damages than liability. Plaintiff

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believes that the parties can reach a settlement in this case, and that defense counsel has an

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aversion to negotiating with a prisoner. (Id.)

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Plaintiff admits that he is not illiterate in matters of law, but believes that defense counsel

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will resist providing certain documents in response to discovery requests on “safety and security”

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grounds that will only be issues because Plaintiff is a prisoner. By contrast, an appointed counsel

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could be provided documents that Plaintiff would likely be precluded from receiving due to his

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custodial status. (Id.)

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Plaintiff also states that while he may have demonstrated some measure of skill in

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litigating this case, he does suffer from PTSD, with the symptoms having become exponentially

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worse as a result of the restrictions and isolation attendant to the COVID-19 novel coronavirus.

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Plaintiff states that because everyone is confined to the housing unit, the noise level in the unit is

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extraordinarily high, which for a person suffering from PTSD-related anxiety is pure hell.

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Plaintiff asks the Court to consider Plaintiff’s PTSD and his rapidly deteriorating mental state in

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determining whether there exists extraordinary circumstances to warrant appointment of counsel

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in the last leg of this litigation. (Id.)

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Plaintiff represents to the Court that if counsel is appointed, Plaintiff would continue to

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draft all of the necessary legal documents, including, if warranted, a motion for summary

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judgment. Counsel’s only responsibility would be to review discovery material too sensitive for a

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prisoner to review, engage in settlement negotiations, and help Plaintiff present his case in the

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event of a trial. Plaintiff also would not object to the appointment of standby counsel to assist

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Plaintiff with these matters, or to a stipulation that Plaintiff, in the event of a settlement or award,

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pay the attorney for the time spent on the case at the attorney’s prevailing hourly rate (or, if the

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case does not settle, a percentage of any monetary award, whichever is higher). (Id.)

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Defendant has not yet had an opportunity to file a response, but the Court finds a response
unnecessary. The motion is deemed submitted. Local Rule 230(l).
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954
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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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

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

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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

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

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

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The Court has considered Plaintiff’s request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases filed by prisoners who are proceeding pro se and suffering

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from a variety of mental health conditions almost daily. Many of these prisoners also litigating

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their cases under restrictions imposed as a result of the COVID-19 pandemic. These litigants also

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must conduct discovery and engage in settlement negotiations without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although the Court has found that Plaintiff stated a

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cognizable claim which has survived a jurisdictional challenge, this does not mean that Plaintiff

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will ultimately prevail on his claim. Further, based on a review of the record in this case, the

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Court does not find that Plaintiff cannot adequately articulate his claims. In fact, Plaintiff has

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demonstrated that he is more than capable of presenting nuanced legal arguments.

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The Court further notes that there has been no indication that defense counsel is unwilling

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to negotiate a settlement agreement with Plaintiff due to his status as a prisoner. As Plaintiff

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indicated, defense counsel provided a counter settlement offer in their correspondence, but the

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parties did not agree to settle because the “offer and counter offer were light years apart.” (ECF

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No. 49, p. 3.) Finally, to the extent Plaintiff is concerned about conducting discovery in this

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matter, he is free to raise his concerns again in response to any protective order or discovery
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dispute that may arise in the future. However, in light of Plaintiff’s confidence in his ability to

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continue drafting all necessary legal documents in this matter, including a motion for summary

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judgment, the Court does not find that this case presents the exceptional circumstances that would

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warrant appointment of counsel.

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Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 49), is HEREBY DENIED,
without prejudice.
IT IS SO ORDERED.
Dated:

/s/ Barbara

April 7, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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