(PC) Barth v. Montejo et al

Filing 40

ORDER signed by Magistrate Judge Deborah Barnes on 1/7/2021 DENYING plaintiff's 33 , 34 motion for appointment of counsel; DENYING as moot plaintiff's 34 motion for the return of his legal property; and GRANTING defendant's 35 motion for a seven-day extension of time to file the response required by the court's 12/16/2020 order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWN DAMON BARTH,

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No. 2:19-cv-1874 DB P

Plaintiff,
v.

ORDER

EUSEBIO MONTEJO,
Defendant.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested

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appointment of counsel and the return of his legal property. Plaintiff states that he requires

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counsel because he is ignorant of the settlement conference process. He further alleges that he

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has been without his legal property and writing supplies since November 16, 2020.

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With respect to plaintiff’s motion for the return of his legal property, this court ordered

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defendant’s counsel to contact the litigation coordinator at San Quentin State Prison regarding the

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allegations in plaintiff’s motion and submit a response to plaintiff’s motion. (Dec. 16, 2020

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Order (ECF No. 32).) Defendant’s counsel has now filed that response. (ECF No. 37.)

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According to that response, plaintiff was provided writing and mailing supplies on December 1

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and his legal materials on December 18. Therefore, plaintiff’s motion for the return of his legal

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property and for legal supplies will be denied as moot.

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With respect to plaintiff’s motion for the appointment of counsel. This court, again, finds
no basis to appoint counsel
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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel.

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In the present case, plaintiff was instructed in the court’s September 21, 2020 order that he
should provide the following information in a settlement conference statement:
(a) names and locations of the parties; (b) a short statement of the
facts and alleged damages; (c) a short procedural history; (d) an
analysis of the risk of liability, including a discussion of the efforts
made to investigate the allegations; and (e) a discussion of the efforts
that have been made to settle the case.
In addition, plaintiff was told that he must place his settlement conference statement in the

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U.S. mail addressed to the settlement conference judge, Magistrate Judge Carolyn Delaney,

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United States District Court, 501 I Street, Sacramento, CA 95814. Plaintiff was also instructed to

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mail his settlement conference statement so that it is received by Judge Delaney at least seven

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days prior to the settlement conference. Pursuant to the court’s October 22, 2020 order, the

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settlement conference is set for January 19, 2021 at 9:30 a.m.

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Plaintiff does not require counsel to prepare for the settlement conference. He fails to
establish extraordinary circumstances justifying the appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 33, 34) is denied;

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2. Plaintiff’s motion for the return of his legal property (ECF No. 34) is denied as moot;
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and
3. Good cause appearing, defendant’s motion for a seven-day extension of time to file the

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response required by the court’s December 16 order (ECF No. 35) is granted.

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Dated: January 7, 2021

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DLB:9
DB/prisoner-civil rights/bart1874.31(3)

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