(PC) Brown v. Reilly et al

Filing 87

ORDER signed by Magistrate Judge Allison Claire on 11/17/22 DENYING 76 Request for Appointment of Counsel, DENYING 80 Motion for Extension of Time and STRIKING 78 , 79 , 81 , 82 & 85 Motions to Appoint Counsel. (Woodworth, 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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No. 2:20-cv-1709 WBS AC P

Plaintiff,
v.

ORDER

A. REILLY, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
U.S.C. § 1983.

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On October 11, 2022, plaintiff filed his sixth, nearly identical motion for a preliminary

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injunction. ECF No. 73. The undersigned’s recommendation that the motion be denied is still

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pending. ECF No. 75. Plaintiff has since filed an additional three motions for preliminary

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injunction that are once again nearly identical in substance to the previous motions. ECF Nos. 76,

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78, 81. On October 14, 2022, plaintiff filed a motion for appointment of counsel. ECF No. 76.

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Defendants were ordered to respond to plaintiff’s claims that he was being denied access to the

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law library, legal paging service, and his legal materials due to being in a mental health crisis bed.

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ECF No. 77. Defendants filed their response on November 10, 2022 (ECF No. 83), and the

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motion is still pending. Plaintiff has filed an additional six motions for appointment of counsel

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that are substantively identical to the motion filed on October 14, 2022. ECF Nos. 78-82, 85.
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Plaintiff has also requested an extension of time to compel settlement. ECF No. 80.

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Plaintiff was previously cautioned against filing multiple, repetitive motions, and warned

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that continuing to do so would result in duplicative requests being stricken from the record. ECF

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No. 62 at 3-4. The duplicative motions for preliminary injunction and for appointment of counsel

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will therefore be stricken from the record. Plaintiff is warned that continued repetitive filings will

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be sricken, and will expose plaintiff to potential limits on filing or sanctions. Sanctions could

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range all the way up to dismissal of this case based upon the degree of noncompliance.

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With respect to plaintiff’s outstanding request for the appointment of counsel (ECF No.
76), 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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“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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Plaintiff requests appointment of counsel on the grounds that he currently housed in a

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crisis bed; is heavily medicated; and has no access to the law library, legal paging service, or his

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legal materials due to his placement in a crisis bed. ECF No. 76. However, plaintiff provides no

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documentation to support his claims, and defendants have advised that plaintiff was discharged

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from the mental health crisis bed on October 20, 2022, and has had at least some of his property

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returned to him since that time. ECF No. 83. Furthermore, as plaintiff has previously been

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advised, the fact that he suffers from mental health conditions and experiences side effects from

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his medication, without more, does not establish exceptional circumstances warranting
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appointment of counsel. ECF Nos. 75. Finally, plaintiff has not demonstrated that he has a

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likelihood of success on the merits and up to this point, has been capable of articulating his claims

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without assistance. The motion will therefore be denied.

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Plaintiff’s motion for an extension of time to compel a settlement will also be denied.

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Plaintiff has already been advised on two prior occasions that the court cannot compel the parties

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to enter into a settlement agreement. ECF No 25; ECF No. 62 at 2. Accordingly, there is no need

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to extend the time to do so. Plaintiff is free to contact defense counsel in writing regarding

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potential settlement at any time during this case, but such correspondence should not be filed with

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the court. Defendants are under no obligation to participate in discussion regarding settlement.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel (ECF No. 76) is DENIED;

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2. Plaintiff’s motion for an extension of time to compel a settlement (ECF No. 80) is

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DENIED; and
3. The Clerk of the Court is directed to strike the duplicative motions for preliminary

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injunction and to appoint counsel (ECF Nos. 76, 78-82, 85) from the record.

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DATED: November 17, 2022

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