Roberson v. Singh et al

Filing 42

ORDER signed by Magistrate Judge Kendall J. Newman on 8/18/2015 ORDERING that within 14 days, counsel for the defendants shall inform the court whether a further settlement conference is appropriate; and plaintiff's 40 motion for the appointment of counsel is dened without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE ROBERSON,

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Plaintiff,

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v.

No. 2:14-cv-2302 WBS KJN P

ORDER

SGT. SINGH, et al.,
Defendants.

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Plaintiff proceeds, in forma pauperis and without counsel, in this civil rights action filed

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pursuant to 42 U.S.C. § 1983. On August 7, 2015, plaintiff filed a request for another settlement

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conference. A settlement conference was held on June 30, 2015. Counsel for defendants had

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asked to continue the settlement conference so that she could review plaintiff’s medical records,

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but the request was denied as plaintiff was already being transported. The case did not settle.

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Plaintiff now indicates a desire for further settlement negotiations. In light of plaintiff’s recent

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settlement demand (ECF No. 39), it may be appropriate to have a further settlement conference.

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Accordingly, within fourteen days, counsel for defendants shall inform the court whether

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a further settlement conference would be appropriate.
Plaintiff also requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an
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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days from the date of this order, counsel for defendants shall inform

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the court whether a further settlement conference is appropriate.
2. Plaintiff’s motion for the appointment of counsel (ECF No. 40) is denied without

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prejudice.

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Dated: August 18, 2015

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robe2302.31kjn

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