(PC) Hardney v. Warren

• Court: District Court, E.D. California
• Decided: January 24, 2023
• Docket: 2:16-cv-00172
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HARDNEY, Case No. 2:16-cv-00172-KJM-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL AND 13 v. TO SET THIS CASE FOR A FURTHER SETTLEMENT CONFERENCE 14 R. WARREN, et al., ECF Nos. 145 & 149 15 Defendants.

16 17 18 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983. He has filed a motion asking that he be appointed counsel and that this 20 case be set for a second settlement conference. ECF Nos. 145 & 149. 21 The undersigned has reviewed the docket and believes that at this time a settlement 22 conference would be unlikely to be productive. Accordingly, plaintiff’s request to set another 23 settlement conference, ECF No. 149, is denied without prejudice. 24 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 25 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 26 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 27 298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. 28 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 1 | counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will 2 | seek volunteer counsel only in exceptional circumstances. In determining whether such 3 | circumstances exist, “the district court must evaluate both the likelihood of success on the merits 4 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 | legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 6 Plaintiff asks that counsel be appointed because new evidence has created complexities in 7 | this case. ECF No. 145 at 1. He also alleges that he plans on amending his complaint to add 8 | claims against at least three defendants. 7d at 9. I cannot conclude that exceptional circumstances 9 | requiring the appointment of counsel are present here. Plaintiff has effectively litigated this case 10 | through discovery, several miscellaneous motions, and defended against a motion for summary 11 | judgment. For these reasons, plaintiff's motion to appoint counsel, ECF No. 145, is denied 12 | without prejudice. 13 The court may revisit this issue at a later stage of the proceedings if the interests of justice 14 | so require. If plaintiff later renews his request for counsel, he should provide a detailed 15 | explanation of the circumstances that he believes justify appointment of counsel in this case. 16 Accordingly, it is hereby ORDERED that plaintiff's motion for appointment of counsel, 17 | ECF No. 145, and motion to set this case for a settlement conference, ECF No. 149, are denied 18 without prejudice. 19 20 IT IS SO ORDERED. 21 ( q Sty - Dated: _ January 23, 2023 ow—— 22 JEREMY D. PETERSON 54 UNITED STATES MAGISTRATE JUDGE

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