Simmons v. Mischel et al

Filing 55

Order Referring Action to Pro Se Prisoner Settlement Program; Denying 53 Motion to Appoint Counsel; Staying Case by Magistrate Judge Virginia K. DeMarchi. (vkdlc1S, COURT STAFF) (Filed on 3/24/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JOYCE MARIE SIMMONS,

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Plaintiff,

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v.

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T. MISCHEL, et al.,

United States District Court
Northern District of California

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Defendants.

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Case No. 18-cv-02193-VKD
ORDER REFERRING TO
SETTLEMENT PROCEEDINGS;
DENYING MOTION FOR
APPOINTMENT OF COUNSEL;
STAYING CASE
Re: Dkt. No. 53

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In this action, pro se plaintiff Joyce Marie Simmons, a federal prisoner confined at the

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Federal Correctional Institution in Dublin, California (“FCI-Dublin”), filed suit against several

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prison officials for allegedly violating her constitutional rights.1 Dkt. No. 1.

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I.

BACKGROUND

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With the Court’s leave (Dkt. No. 47), Ms. Simmons filed an amended complaint to attempt

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to state a claim under the Federal Torts Claim Act (“FTCA”). Dkt. No. 49. Defendants moved to

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dismiss the amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the

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Federal Rules of Civil Procedure or, alternatively, for summary judgment under Rule 56. Dkt. No.

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50. The Court granted in part and denied in part defendants’ motion: the Court dismissed the

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FTCA claim against the individual defendants with prejudice for failure to state a claim for relief,

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but the Court permitted the claim against the United States for supervisory negligence relating to

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the alleged battery by a federal employee, Ms. Phillips, to proceed. Dkt. No. 51. Due to Ms.

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Although Ms. Simmons filed her complaint as an action under 42 U.S.C. § 1983, the Court
construed the complaint as an action arising under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971). Dkt. No. 28 at 2.

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Simmons’s failure to respond to defendants’ motion, the Court required her to file notice of her

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intent to prosecute this action before it ordered further proceedings. Id. On March 23, 2020, Ms.

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Simmons filed notice of her intent to prosecute this action, along with a motion for appointment of

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counsel. Dkt. Nos. 52, 53.

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II.

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MOTION FOR APPOINTMENT OF COUNSEL
There is no constitutional right to counsel in a civil case unless an indigent litigant may

lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S.

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18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to

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counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952

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(9th Cir. 1998) (en banc). However, a court “may request an attorney to represent any person

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United States District Court
Northern District of California

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unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The decision to request counsel to represent an

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indigent litigant under § 1915 is within “the sound discretion of the trial court and is granted only

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in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A

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finding of “exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s

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success on the merits and an evaluation of the plaintiff’s ability to articulate her claims pro se in

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light of the complexity of the legal issues involved. See Agyeman v. Corr. Corp. of Am., 390 F.3d

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1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors

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must be viewed together before reaching a decision on a request for counsel under § 1915. See

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Rand, 113 F.3d at 1525.

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Ms. Simmons asserts the following grounds for appointment of counsel: she is unable to

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afford counsel, her imprisonment greatly limits her ability to litigate this matter, the issues

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involved will require significant research and investigation, she has limited access to the law

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library and limited knowledge of the law, and she would be better served with counsel if this

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matter proceeds to trial. Dkt. No. 53. The Court finds that these considerations do not establish

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that exceptional circumstances warrant appointment of counsel at this time. Ms. Simmons has

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demonstrated her ability to articulate her claims and pursue this matter without the assistance of

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counsel, and the issues involved are not so complex that assistance of counsel is necessary to
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effectively litigate this matter. See, e.g., Rand, 113 F.3d at 1525 (where plaintiff’s pursuit of

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discovery was comprehensive and focused, and his papers were generally articulate and organized,

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district court did not abuse discretion in denying request for counsel); Wilborn, 789 F.2d at 1331

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(that plaintiff may well have fared better with assistance of counsel not enough). As discussed

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below, the Court will refer this matter for settlement proceedings. If those proceedings are

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unsuccessful, Ms. Simmons may renew her request for appointment of counsel. Ms. Simmons’s

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motion for appointment of counsel is denied for lack of exceptional circumstances, without

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prejudice to renewal. See Franklin, 745 F.2d at 1236.

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III.

PRO SE SETTLEMENT PROGRAM
The Court has established a Pro Se Prisoner Settlement Program under which certain

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United States District Court
Northern District of California

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prisoner civil rights cases may be referred to a neutral Magistrate Judge for settlement. Because

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the Court concluded that Ms. Simmons has stated a claim under the FTCA for supervisory

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negligence against the United States, and denied the United States’ motion for summary judgment

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or dismissal for lack of subject matter jurisdiction, the Court finds the instant matter suitable for

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settlement proceedings. Accordingly, the instant action will be referred to a neutral Magistrate

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Judge for mediation under the Pro Se Prisoner Settlement Program.

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IV.

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CONCLUSION
For the reasons stated above, Ms. Simmons’s motion for appointment of counsel is denied.

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Dkt. No. 53. This matter is referred to Judge Robert M. Illman pursuant to the Pro Se Prisoner

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Settlement Program for settlement proceedings on the claims in this action, as described above.

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The proceedings shall take place within ninety (90) days of the filing date of this order, subject to

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any extensions of time that may be necessary in view of the current public health crisis. See

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General Orders 72 and 73. Judge Illman shall coordinate a time and date for a settlement

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conference with all interested parties or their representatives and, within ten (10) days after the

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conclusion of the settlement proceedings, file with the Court a report regarding the prisoner

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settlement proceedings.

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Other than the settlement proceedings ordered herein, and any matters Judge Illman deems
necessary to conduct such proceedings, this action is hereby STAYED until further order by the
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Court following the resolution of the settlement proceedings.
IT IS SO ORDERED.
Dated: March 24, 2020

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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