(PC) Calloway v. Nieves

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, No. 2:19-cv-01792-DJC-CKD-P 12 Plaintiff, 13 v. ORDER REQUIRING PRETRIAL 14 D. NIEVES, et al., STATUS REPORT 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without a lawyer in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983. On August 19, 2022, defendants’ motion for summary judgment 19 was denied with respect to the Eighth Amendment excessive force claim against defendant 20 Nieves based on his use of a metal baton against plaintiff on November 19, 2015. ECF No. 119. 21 Since that time, several settlement conferences have been conducted, without success. ECF Nos. 22 121, 126, 129, 130, 133, 136, 141. Due to the difficulties encountered in obtaining plaintiff’s 23 participation and presence at these settlement conferences held via Zoom, several issues need to 24 be resolved before this matter can be set for a jury trial. 25 Therefore, the parties are ordered to meet and confer for the purpose of submitting a 26 pretrial status report to include proposed dates for: 1) submission of each party’s pretrial 27 statement; 2) a pretrial conference; 3) a final status conference; and, 4) a jury trial date including 28 an estimated length of the trial this matter. The parties are further directed to include any health 1 or security issues that may arise during the trial of this matter and what special conditions or 2 combination of conditions are necessary in order to address them in advance of trial. Counsel for 3 defendant shall specifically determine what special transportation orders may be necessary in this 4 case to secure plaintiff’s physical presence at trial in light of his ongoing medical treatment. 5 This pretrial status report shall be filed jointly, if at all possible. If the parties have 6 different positions on the matters in the pretrial report, such separate positions shall be detailed 7 within the joint status report. 8 Plaintiff is cautioned that his failure to participate in the submission of the pretrial status 9 report, or to otherwise fail to comply with the court’s order, may result in a recommendation that 10 this action be dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil 11 Procedure. See ECF No. 134 (order for plaintiff to show cause). If necessary, defendant may 12 include any information about plaintiff’s non-compliance with this order as part of the pretrial 13 status report. 14 Also pending before the court is plaintiff’s motion to set a trial date and to appoint pro 15 bono counsel to represent him at trial. ECF No. 142. The motion to set a trial date is denied as 16 moot in light of this order requiring a pretrial status report. As to his request for appointed 17 counsel, district courts lack authority to require counsel to represent indigent prisoners in section 18 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 19 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 20 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 21 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 22 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 23 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 24 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 25 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 26 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 27 legal education and limited law library access, do not establish exceptional circumstances that 28 warrant a request for voluntary assistance of counsel. 1 Having considered the factors under Palmer, the court finds that plaintiff has failed to 2 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 3 || counsel at this time. Although plaintiff has numerous medical problems, he has been able to 4 || represent himself effectively throughout this litigation including at summary judgment. 5 || Therefore, the court denies plaintiff's motion for the appointment of counsel without prejudice. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Within 30 days from the date of this order, the parties are directed to meet and confer 8 | for the purpose of submitting a joint pretrial status report. 9 2. The joint pretrial status report containing the matters described herein shall be filed no 10 | later than 60 days from the date of this order unless an extension of time is deemed necessary by 11 | the parties. 12 3. Plaintiffs motion to set a trial date (ECF No. 142) is denied as moot in light of this 13 || order. 14 4. Plaintiff's motion for the appointment of pro bono counsel (ECF No. 142) is denied 15 || without prejudice. 16 | Dated: November 20, 2024 / ae □□ / a Ly a "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 12/call1792.meet&confer 21 22 23 24 25 26 27 28