Sekona v. Custino, et al.

Filing 141

ORDER signed by Magistrate Judge Dennis M. Cota on 10/02/19 DENYING 138 Motion to Appoint Counsel and DENYING 137 Motion for a settlement conference. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 12 13 14 No. 2:16-CV-0517-JAM-DMC-P Plaintiff, v. ORDER F. CUSTINO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s renewed motion for the appointment of 19 counsel (ECF No. 138). Also before the court is plaintiff’s motion for a settlement conference 20 (ECF No. 137). 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 1 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 of counsel because: 4 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 5 6 Id. at 1017. 7 8 9 In the present case, the court does not at this time find the required exceptional circumstances. As to success on the merits, while the court has recommended denial of 10 defendants’ motion for summary judgment as to plaintiff’s Eighth Amendment safety claim 11 against defendant Custino, plaintiff has not demonstrated any particular likelihood of success on 12 the merits of that claim. At this point in the proceedings, the record merely demonstrates that 13 there are genuine disputes of material fact as to plaintiff’s claim against defendant Custino, not 14 that plaintiff is likely to prevail on that claim. Moreover, the court finds the Eighth Amendment 15 safety claim is not complex legally or factually, and plaintiff has demonstrated an adequate ability 16 to articulate them on his own. Turning to plaintiff’s motion for a settlement conference, the record does not 17 18 indicate that defendants are willing to participate in a settlement conference at this time. Should 19 defendants express a desire to discuss settlement, the court will set a settlement conference. In 20 the meantime, plaintiff’s motion will be denied. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request for the appointment of counsel (ECF No. 138) is denied; 2. Plaintiff’s motion for a settlement conference (ECF No. 137) is denied. 23 24 and 25 26 Dated: October 2, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 27 28 2

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