(PC) Luevano v. Jenkins

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LUEVANO, No. 2:22-cv-0091 KJN P 12 Plaintiff, 13 v. ORDER 14 ANTHONY JENKINS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma paupers, with an action 18 brought under 42 U.S.C. § 1983. On Augusts 21, 2023, plaintiff renewed his opposition to 19 defendants’ motion to opt out of the settlement conference, demands a settlement conference, and 20 renews his request for appointment of counsel. 21 On August 3, 2023, the undersigned found good cause to grant defendants’ motion to opt 22 out of the settlement conference, following consideration of plaintiff’s prior opposition to the 23 motion. (ECF No. 42.) Indeed, on August 15, 2023, defendants filed a motion for summary 24 judgment claiming that plaintiff failed to exhaust his administrative remedies prior to filing the 25 instant action. Because defendants are pursuing their affirmative defense of exhaustion of 26 administrative remedies, it is premature to hold a settlement conference in this action. 27 //// 28 //// 1 || Plaintiff's Renewed Motion for Counsel 2 As discussed in the August 3, 2023 order, district courts lack authority to require counsel 3 || to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 4 | U.S. 296, 298 (1989). At this juncture, the court does not find exceptional circumstances warrant 5 || the court requesting an attorney to voluntarily represent plaintiff. See 28 U.S.C. § 1915(e)(1). 6 || Indeed, in light of defendants’ pending motion, it is unclear whether plaintiff is likely to succeed 7 || on the merits, and the record reflects that plaintiff is able to articulate his claim and defend his 8 | positions. Having considered the factors under Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 9 || 2009), the court again finds that plaintiff has not met his burden of demonstrating exceptional 10 || circumstances warranting the appointment of counsel at this time. Plaintiffs motion is denied 11 | without prejudice. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's August 21, 2023 motion (ECF No. 47) is denied; and 14 2. Plaintiffs motion for the appointment of counsel (ECF No. 47) is denied without 15 || prejudice. 16 || Dated: August 24, 2023 Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 21 || /ew/luev0091.den2 22 23 24 25 26 27 28