Saldana v. Spearman et al

Filing 51

ORDER signed by Magistrate Judge Allison Claire on 12/16/20 DENYING 50 Motion to Appoint Counsel. Within 14 days of the service of this order, defendant shall notify the court whether he believes a settlement conference would be beneficial at this time. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL SALDANA,

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No. 2:18-cv-0319 AC P

Plaintiff,
v.

ORDER

M.E. SPEARMAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before this court is plaintiff’s most recent request for a second

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settlement conference and motion to appoint counsel. ECF No. 50.

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The parties initially participated in a settlement conference before Judge Newman on

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October 16, 2019, as part of the Post-Screening ADR Project. ECF No. 27. The case did not

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settle at that time. Id. Plaintiff then moved for a second settlement conference, ECF No. 34, but

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the motion was denied after defense counsel advised that he did not believe a settlement

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conference would be beneficial at that time and that he would want to take plaintiff’s deposition

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before participating in any additional settlement conferences, ECF Nos. 40, 41. Plaintiff has now

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filed another motion for a second settlement conference on the ground that his deposition has

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been taken. ECF No. 50.

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Settlement conferences are scheduled at the discretion of the court, either sua sponte or
upon joint request of the parties. Defendant’s position on the present usefulness of a settlement
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conference is unknown. Accordingly, defendant shall be required to notify the court whether he

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believes a settlement conference would be beneficial at this time.

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Plaintiff also requests the appointment of counsel on the ground that the prison is on

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lockdown due to COVID-19 and he therefore has no access to the law library. ECF No. 50. The

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United States Supreme Court has ruled that district courts lack authority to require counsel to

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

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298 (1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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

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

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The circumstances identified by plaintiff are currently being experienced by prisoners

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throughout the California Department of Corrections and Rehabilitation and therefore do not

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establish the necessary exceptional circumstances. The motion for counsel will therefore be

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denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days of the service of this order, defendant shall notify the court

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whether he believes a settlement conference would be beneficial at this time.
2. Plaintiff’s motion for appointment of counsel, ECF No. 50, is DENIED.
DATED: December 16, 2020

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