Hardney v. Warren et al

Filing 156

ORDER signed by Magistrate Judge Jeremy D. Peterson on 1/23/2023 DENYING, without prejudice, plaintiff's 145 motion for appointment of counsel and 149 motion to set this case for a settlement conference. (Yin, K)

Case 2:16-cv-00172-KJM-JDP Document 156 Filed 01/24/23 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HARDNEY,

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Plaintiff,
v.

Case No. 2:16-cv-00172-KJM-JDP (PC)
ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL AND
TO SET THIS CASE FOR A FURTHER
SETTLEMENT CONFERENCE

R. WARREN, et al.,
ECF Nos. 145 & 149
Defendants.

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

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under 42 U.S.C. § 1983. He has filed a motion asking that he be appointed counsel and that this

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case be set for a second settlement conference. ECF Nos. 145 & 149.

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The undersigned has reviewed the docket and believes that at this time a settlement

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conference would be unlikely to be productive. Accordingly, plaintiff’s request to set another

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settlement conference, ECF No. 149, is denied without prejudice.

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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), and the court lacks the authority to require an

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attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296,

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298 (1989). The court can 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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Case 2:16-cv-00172-KJM-JDP Document 156 Filed 01/24/23 Page 2 of 2
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counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will

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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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Plaintiff asks that counsel be appointed because new evidence has created complexities in

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this case. ECF No. 145 at 1. He also alleges that he plans on amending his complaint to add

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claims against at least three defendants. Id at 9. I cannot conclude that exceptional circumstances

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requiring the appointment of counsel are present here. Plaintiff has effectively litigated this case

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through discovery, several miscellaneous motions, and defended against a motion for summary

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judgment. For these reasons, plaintiff’s motion to appoint counsel, ECF No. 145, is denied

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without prejudice.

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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 in this case.

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Accordingly, it is hereby ORDERED that plaintiff’s motion for appointment of counsel,

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ECF No. 145, and motion to set this case for a settlement conference, ECF No. 149, are denied

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without prejudice.

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IT IS SO ORDERED.

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Dated:

January 23, 2023

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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