(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, 12 Plaintiff, 13 14 No. 2:20-cv-1709 WBS AC P v. ORDER A. REILLY, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently before the court are defendants’ motion to 19 opt out of the Post-Screening ADR (Alternative Dispute Resolution) Project (ECF No. 56) and 20 plaintiff’s various motions for a temporary restraining order or preliminary injunction (ECF Nos. 21 32, 40, 54), to compel a settlement (ECF Nos. 41, 42, 57), for appointment of counsel (ECF No. 22 51), for default judgment (ECF No. 52), and to compel discovery (ECF Nos. 53). I. 23 Motion to Opt Out 24 By order filed April 8, 2022, this case was referred to the court’s Post-Screening ADR 25 Project and stayed for a period of 120 days. ECF No. 56. That order provided defendants the 26 opportunity to request opting out of the ADR Project based on a good faith belief that a settlement 27 conference would be a waste of resources. Id. at 2. Defendants now request to opt out of the 28 //// 1 1 Post-Screening ADR Project and that the stay be lifted. ECF No. 60. Having reviewed the 2 request, the court finds good cause to grant it. 3 II. 4 Motions for Temporary Restraining Order or Preliminary Injunction Plaintiff has filed multiple motions for a temporary restraining order or preliminary 5 injunction in which he alleges that he is scheduled to be transferred to CSP, Sacramento—where 6 defendants work—and that his life will be in danger upon his arrival at the prison. ECF Nos. 32, 7 40, 54. In addition to responding to the complaint, defendants shall also respond to plaintiff’s 8 motions for an injunction and address the imminency or likelihood of his return to CSP, 9 Sacramento and the alleged threat he faces upon his return. 10 III. Motions to Compel a Settlement Plaintiff has filed three motions requesting the court compel a settlement.1 ECF Nos. 41, 11 12 42, 57. The court cannot compel the parties to enter into a settlement agreement. To the extent 13 the motions are a request to set this case for a settlement conference, defendants’ have 14 represented that a settlement conference would not be productive at this time. For these reasons, 15 the motions will be denied. 16 IV. 17 Motion for Counsel In a motion made by another inmate on plaintiff’s behalf, plaintiff seeks appointment of 18 counsel on the ground that he is now blind due to a recent stroke. ECF No. 51. The United States 19 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 20 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 21 certain exceptional circumstances, the district court may request the voluntary assistance of 22 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 23 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 28 1 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. 2 1 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 2 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 3 most prisoners, such as lack of legal education and limited law library access, do not establish 4 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 5 Plaintiff’s claim that he is now blind and unable to proceed without assistance, without 6 supporting documentation, is not sufficient to warrant the appointment of counsel. If plaintiff 7 chooses to file another motion for appointment of counsel, he must provide medical 8 documentation supporting his claimed impairments. He must also address the availability of 9 accommodations at the prison to assist him with the completion of his legal work and provide 10 11 supporting documentation if he claims that requests for accommodations are being denied. V. 12 Motion for Default Judgment Plaintiff has filed a motion for default judgment on the ground that defendants have 13 “exceeded the time specified (60) days” due to their difficulties in locating defendant Phillips to 14 obtain a waiver of service. ECF No. 52. Defendants timely sought and were granted extensions 15 of time to file service waivers and respond to the complaint. ECF Nos. 45, 49. Prior to the 16 deadline for defendants to respond to the complaint, this case was stayed while it was referred to 17 the Post-Screening ADR Project. ECF No. 56. In light of defendants’ request to opt out of the 18 Post-Screening ADR Project, the stay will be lifted and a new deadline will be set for defendants 19 to respond to the complaint. Because defendants have not exceeded the time to respond to the 20 complaint they are not in default and default judgment cannot be entered and the motion will be 21 denied. See Fed. R. Civ. P. 55. 22 23 VI. Motion to Compel Discovery Plaintiff has filed a motion for discovery seeking the last known address of defendant 24 Phillips for service. ECF No. 53. Defendant Phillips has waived service (ECF No. 55) and the 25 motion will be denied. 26 27 28 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 3 1 potential limits on filing or sanctions. The Eastern District of California maintains one of the 2 heaviest caseloads in the nation, a significant portion of which is comprised of pro se inmate 3 cases. This sometimes causes unavoidable delays in the resolution of individual matters, and 4 plaintiff’s continued filing of duplicative requests does nothing but further slow the court’s ability 5 to address his case. 6 CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Defendants’ request to opt out of the Post-Screening ADR Project (ECF No. 60) is 9 GRANTED. 10 2. The stay of this action, commencing April 8, 2022 (ECF No. 56), is LIFTED. 11 3. Within thirty days of the filing of this order, defendants shall file a response to the 12 13 complaint. 4. Within thirty days of the filing of this order, defendants shall respond to plaintiff’s 14 motions for a temporary restraining order or preliminary injunction (ECF Nos. 32, 40, 54). 15 5. Plaintiff’s motions to compel a settlement (ECF Nos. 41, 42, 57) are DENIED. 16 6. Plaintiff’s motion for appointment of counsel (ECF No. 51) is DENIED. 17 7. Plaintiff’s motion for default judgment (ECF No. 52) is DENIED. 18 8. Plaintiff’s motion for discovery (ECF No. 53) is DENIED. 19 DATED: May 6, 2022 20 21 22 23 24 25 26 27 28 4

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