(PC) Muhammad v. Solano

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANSAR EL MUHAMMAD, No. 2:21-cv-0892-TLN-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 SOLANO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this 28 U.S.C. § 1983 action. Pending 18 before me are plaintiff’s motions to consolidate cases and for the appointment of counsel, and 19 defendants’ motion for a settlement conference. 20 Motion to Consolidate Cases 21 Plaintiff moves to have this matter consolidated with two other civil actions pending in 22 this district. ECF No. 21; see Muhammad v. Orr, No. 2:19-cv-01289-DJC-CKD (E.D. Cal.); 23 Muhammad v. Linennger, No. 2:20-cv-00070-DAD-DMC (E.D. Cal.). Plaintiff seeks 24 consolidation of these matters for the purpose of achieving a global settlement agreement. On the 25 same day plaintiff filed his motion for consolidation, he filed two nearly identical motions in the 26 other cases. See Orr at ECF No. 71; Linennger at ECF No. 45. Both Judge Delaney and Judge 27 Cota denied plaintiff’s motions to consolidate. See Orr at ECF No. 78; Linennger at ECF No. 55. 28 Both judges found, as I do here, that these cases do not involve common questions of law and fact 1 and that the actions should not be consolidated under Federal Rule of Civil Procedure 42. 2 Accordingly, plaintiff’s motion to consolidate is denied. 3 Request for a Settlement Conference 4 A settlement conference was set before Judge Cota on June 1, 2023, but the conference 5 did not proceed because plaintiff was transferred to a crisis bed on the morning of the conference. 6 Defendants have since met and conferred with plaintiff and believe that a settlement conference 7 would be beneficial. See ECF No. 31. Accordingly, defendants’ motion for a settlement 8 conference is granted. 9 Motion for the Appointment of Counsel 10 District courts lack authority to require counsel to represent indigent prisoners in § 1983 11 cases. Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989). In exceptional circumstances, the 12 court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. 13 § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 14 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” 15 exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability 16 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 17 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse 18 discretion in declining to appoint counsel). The burden of demonstrating exceptional 19 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 20 legal education and limited law library access, do not establish exceptional circumstances that 21 warrant a request for voluntary assistance of counsel. 22 Plaintiff requests the appointment of counsel because in May of this year he was 23 transferred to a mental health crisis bed and expects to receive ongoing treatment for an extended 24 period of time. ECF No. 28. After considering the factors under Palmer, the court finds that 25 plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the 26 appointment of counsel at this time. 27 Accordingly, it is hereby ORDERED that: 28 1. Plaintiff’s motion to consolidate, ECF No. 21, is denied. 1 2. Plaintiffs motion for the appointment of counsel, ECF No. 28, is denied. 2 3. Defendants’ motion to set a settlement conference, ECF No. 31, is granted. 3 4 IT IS SO ORDERED.

Dated: _ August 1, 2023 aw—— 6 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28