Baker v. Macomber et al

Filing 89

ORDER signed by Magistrate Judge Allison Claire on 04/03/18 GRANTING IN PART 86 Motion to Appoint Counsel. Counsel is appointed for the limited purpose of representing plaintiff at a mandatory settlement conference. The clerk of court is directed to contact Ms. Sujean Park, Alternative Dispute Resolution Coordinator, for the purpose of locating an attorney admitted to practice in this court who is willing to accept the appointment. (cc: ADR Director) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:15-cv-0248 TLN AC P

ORDER

J. MACOMBER, et al.,

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Defendants.

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Plaintiff is a state prisoner incarcerated at the California Substance Abuse Treatment

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Facility in Corcoran, under the authority of the California Department of Corrections and

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Rehabilitation. Plaintiff proceeds pro se with this civil rights action against sole defendant

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correctional officer J. McCowan. Following the court’s March 30, 2018 decision on the parties’

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cross-motions for summary judgment, this action proceeds against McCowan on the following

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claims: (1) the use of excessive force, and (2) deliberate indifference to plaintiff’s serious

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medical needs premised on defendant’s failure to abide by plaintiff’s medical chrono for frontal

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waist restraints. See ECF Nos. 88, 85.
Currently pending is plaintiff’s sixth request for appointment of counsel. See ECF No. 86.

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This order grants plaintiff’s request in part, for purposes of representing plaintiff at a mandatory

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settlement conference.

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The undersigned previously found, in assessing plaintiff’s fifth request, that appointment

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of counsel would be appropriate if this case survived the parties’ dispositive motions. See ECF

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No. 64 at 2-4. The court then found, as it does now, that the following matters present

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exceptional circumstances warranting appointment of counsel after summary judgment, see id. at

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2-3:

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Plaintiff avers that he is “legally blind and is very restricted in his
ability to try and effectively litigate the pending case.” ECF No. 63
at 1. Plaintiff avers that he qualifies for accommodations under the
Americans with Disabilities Act, and that his disabilities include
vision loss, decreased visual acuity, cataracts, macular
degeneration, glaucoma, and 20/200 best corrected/uncorrected
vision in both eyes. Id. at 2. Plaintiff has provided supporting
documentation from his medical and other prison records, endorsed
by a correctional counselor. Id. at 5. Plaintiff further avers that he
has only an eighth-grade education . . . .

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The court also finds that plaintiff has a reasonable likelihood of success on the merits of this

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action but is now not capable of effectively pursuing his own interests. See Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009). The current legal posture of this case, together with plaintiff’s

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serious medical challenges, warrant appointment of counsel at this time. See 28 U.S.C. §

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1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also General Order No.

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230, U.S. District Court, Eastern District of California (setting forth the criteria and procedure for

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appointment of counsel in Section 1983 cases).

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The undersigned further finds that there is a reasonable possibility that a settlement

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conference may resolve the case. Accordingly, the undersigned will direct the court’s Alternative

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Dispute Resolution Coordinator to locate an attorney willing to represent plaintiff for that limited

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purpose, viz., to meet with plaintiff, review the documents in this case, and represent plaintiff at a

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mandatory settlement conference. The settlement conference will be scheduled after counsel’s

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appointment and in consultation with defense counsel.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, ECF No. 86, is granted in part; counsel

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is appointed for the limited purpose of representing plaintiff at a mandatory settlement

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conference.
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2. The Clerk of Court is directed to contact Ms. Sujean Park, Alternative Dispute

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Resolution Coordinator, for the purpose of locating an attorney admitted to practice in this court

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who is willing to accept this appointment.

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SO ORDERED.

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DATED: April 3, 2018

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