(PC) Brown v. Reilly et al

Filing 62

ORDER signed by Magistrate Judge Allison Claire on 05/06/22 GRANTING 60 Motion to opt out of the post screening ADR project DENYING 41 , 42 , 57 Motion to Compel a settlement; DENYING 51 Motion to Appoint Counsel; DENYING 52 Motion fo r default judgment; and DENYING 53 Motion for discovery. The stay of this action is LIFTED. Within thirty days of the filing of this order, defendants shall respond to plaintiff'smotions for a temporary restraining order or preliminary injunction 32 , 40 , 54 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE CHEROKEE BROWN,

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Plaintiff,

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No. 2:20-cv-1709 WBS AC P

v.

ORDER

A. REILLY, et al.,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. Currently before the court are defendants’ motion to

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opt out of the Post-Screening ADR (Alternative Dispute Resolution) Project (ECF No. 56) and

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plaintiff’s various motions for a temporary restraining order or preliminary injunction (ECF Nos.

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32, 40, 54), to compel a settlement (ECF Nos. 41, 42, 57), for appointment of counsel (ECF No.

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51), for default judgment (ECF No. 52), and to compel discovery (ECF Nos. 53).
I.

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Motion to Opt Out

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By order filed April 8, 2022, this case was referred to the court’s Post-Screening ADR

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Project and stayed for a period of 120 days. ECF No. 56. That order provided defendants the

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opportunity to request opting out of the ADR Project based on a good faith belief that a settlement

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conference would be a waste of resources. Id. at 2. Defendants now request to opt out of the

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Post-Screening ADR Project and that the stay be lifted. ECF No. 60. Having reviewed the

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request, the court finds good cause to grant it.

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II.

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Motions for Temporary Restraining Order or Preliminary Injunction
Plaintiff has filed multiple motions for a temporary restraining order or preliminary

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injunction in which he alleges that he is scheduled to be transferred to CSP, Sacramento—where

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defendants work—and that his life will be in danger upon his arrival at the prison. ECF Nos. 32,

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40, 54. In addition to responding to the complaint, defendants shall also respond to plaintiff’s

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motions for an injunction and address the imminency or likelihood of his return to CSP,

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Sacramento and the alleged threat he faces upon his return.

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III.

Motions to Compel a Settlement
Plaintiff has filed three motions requesting the court compel a settlement.1 ECF Nos. 41,

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42, 57. The court cannot compel the parties to enter into a settlement agreement. To the extent

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the motions are a request to set this case for a settlement conference, defendants’ have

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represented that a settlement conference would not be productive at this time. For these reasons,

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the motions will be denied.

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IV.

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Motion for Counsel
In a motion made by another inmate on plaintiff’s behalf, plaintiff seeks appointment of

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counsel on the ground that he is now blind due to a recent stroke. ECF No. 51. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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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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Although one of the motions is styled as a motion to compel a settlement conference and
discovery, it addresses only plaintiff’s request for a settlement. ECF No. 41.
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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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Plaintiff’s claim that he is now blind and unable to proceed without assistance, without

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supporting documentation, is not sufficient to warrant the appointment of counsel. If plaintiff

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chooses to file another motion for appointment of counsel, he must provide medical

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documentation supporting his claimed impairments. He must also address the availability of

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accommodations at the prison to assist him with the completion of his legal work and provide

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supporting documentation if he claims that requests for accommodations are being denied.
V.

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Motion for Default Judgment
Plaintiff has filed a motion for default judgment on the ground that defendants have

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“exceeded the time specified (60) days” due to their difficulties in locating defendant Phillips to

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obtain a waiver of service. ECF No. 52. Defendants timely sought and were granted extensions

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of time to file service waivers and respond to the complaint. ECF Nos. 45, 49. Prior to the

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deadline for defendants to respond to the complaint, this case was stayed while it was referred to

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the Post-Screening ADR Project. ECF No. 56. In light of defendants’ request to opt out of the

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Post-Screening ADR Project, the stay will be lifted and a new deadline will be set for defendants

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to respond to the complaint. Because defendants have not exceeded the time to respond to the

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complaint they are not in default and default judgment cannot be entered and the motion will be

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denied. See Fed. R. Civ. P. 55.

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VI.

Motion to Compel Discovery
Plaintiff has filed a motion for discovery seeking the last known address of defendant

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Phillips for service. ECF No. 53. Defendant Phillips has waived service (ECF No. 55) and the

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motion will be denied.

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VII.

Repetitive Filings

Plaintiff has established a pattern of filing multiple, repetitive motions and he is cautioned
that continued repetitive filings will result in such filings being stricken from the record and
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potential limits on filing or sanctions. The Eastern District of California maintains one of the

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heaviest caseloads in the nation, a significant portion of which is comprised of pro se inmate

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cases. This sometimes causes unavoidable delays in the resolution of individual matters, and

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plaintiff’s continued filing of duplicative requests does nothing but further slow the court’s ability

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to address his case.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ request to opt out of the Post-Screening ADR Project (ECF No. 60) is

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GRANTED.

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2. The stay of this action, commencing April 8, 2022 (ECF No. 56), is LIFTED.

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3. Within thirty days of the filing of this order, defendants shall file a response to the

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complaint.
4. Within thirty days of the filing of this order, defendants shall respond to plaintiff’s

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motions for a temporary restraining order or preliminary injunction (ECF Nos. 32, 40, 54).

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5. Plaintiff’s motions to compel a settlement (ECF Nos. 41, 42, 57) are DENIED.

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6. Plaintiff’s motion for appointment of counsel (ECF No. 51) is DENIED.

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7. Plaintiff’s motion for default judgment (ECF No. 52) is DENIED.

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8. Plaintiff’s motion for discovery (ECF No. 53) is DENIED.

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DATED: May 6, 2022

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