(PC) Driver v. Kern County Superior Court

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, No. 2: 20-cv-1665 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 KERN COUNTY SUPERIOR COURT, et al., 15 Defendants. 16

17 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Three matters are pending before the court. 20 Plaintiff’s Request for an Alternative Dispute Resolution Conference (ECF No. 96) 21 Plaintiff contends that he and defendants stipulated to participate in a settlement 22 conference. Attached to plaintiff’s request are two letters addressed to plaintiff from defense 23 counsel dated May 18, 2021, and August 31, 2021. In these letters, defense counsel states that 24 plaintiff’s settlement proposal is rejected. The letters state that the parties can explore settlement 25 later if the circumstances change. 26 The undersigned previously informed plaintiff that the court will schedule a settlement 27 conference if all parties agree to participate. The May 18, 2021, and August 31, 2021 letters do 28 not demonstrate that defendants agreed to participate in a settlement conference. Accordingly, 1 plaintiff’s request for a settlement conference, contained in his request for an alternative dispute 2 resolution conference, is denied. 3 Plaintiff’s Motion for Appointment of Counsel (ECF No. 97) 4 District courts lack authority to require counsel to represent indigent prisoners in section 5 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 6 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 7 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 8 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 9 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 10 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 11 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 12 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 13 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 14 legal education and limited law library access, do not establish exceptional circumstances that 15 warrant a request for voluntary assistance of counsel. 16 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 17 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 18 time. Accordingly, plaintiff’s motion for appointment of counsel is denied. 19 Plaintiff’s Motion to Consolidate Cases (ECF No. 98) 20 Plaintiff appears to request that the instant action be consolidated with an action plaintiff 21 filed in Los Angeles County Superior Court. The court is not authorized to consolidate this action 22 with a case proceeding in state court. Devenny v. Lakewood Fire District 2, 2010 WL 11685177, 23 at *2 (W.D. Wash. June 1, 2010) (“Neither the Priority of Action Doctrine nor Fed. R. Civ. P. 24 42(a) authorize a federal court to take a lawsuit filed in a state court and consolidate it with a 25 lawsuit filed in a federal court…”); 9A C. Wright & A. Miller, Federal Practice and Procedure 26 § 2382 (3d. ed. Nov. 2018) (“a court may not consolidate an action pending in federal court with 27 an action pending in state court.”). 28 //// ] Accordingly, plaintiff's motion to consolidate the instant action with his state court action 2 || is denied. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiffs request for an alternative dispute resolution conference (ECF No. 96) is 5 denied; 6 2. Plaintiff's motion for appointment of counsel (ECF No. 97) is denied; 7 3. Plaintiff's request to consolidate cases (ECF No. 98) is denied. 8 || Dated: December 9, 2021 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 Dr1665.mot 17 18 19 20 21 22 23 24 25 26 27 28