(PC) Williams v. Baker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON WILLIAMS, Case No. 1:16-cv-01540-DAD-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 188) 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel filed on December 2, 18 2024. (Doc. No. 188). Plaintiff, a federal prisoner, proceeds in forma pauperis solely on his 19 battery claim seeking monetary damages under the Federal Tort Claims ACT (“FTCA”) 20 contained in his amended complaint. (Doc. Nos. 1, 99, 146, 161).1 A settlement conference and 21 bench trial are scheduled in this case for December 20, 2024 and February 3, 2025, respectively. 22 (Doc. Nos. 194, 179). Plaintiff had previously been appointed counsel, and the Court granted pro 23 bono counsel’s motion to withdraw on April 24, 2024 based on Plaintiff’s express intent that he 24 wished to discharge his attorney. (Doc. Nos. 70, 164). The district court denied Plaintiff’s 25 motion for reconsideration of the April 24, 2024 order discharging counsel. (Doc. No. 170). 26 Plaintiff requests the Court to reappoint him counsel because his institution is 27 1 Plaintiff’s Eight Amendment claim brought pursuant to Bivens was dismissed due to the Supreme 28 Court’s opinion in Egbert, and Ninth Circuit’s opinions in Harper and Chambers. (Doc. Nos. 146, 161). 1 “continuously and currently on institution[al] lockdown.” (Doc. No. 188 at 1). Plaintiff states 2 that the lockdowns result in no access to phone or e-mail, and he is without access to the law 3 library to research and timely comply with the Court’s orders and deadlines. (Id. at 2). Plaintiff 4 also argues that the Protective Order concerning the location of cameras at U.S.P. Atwater, where 5 the incident giving rise to his claim occurred, is unwarranted “as the cameras are not hidden from 6 inmates and it is common knowledge that inmates” at USP Atwater are under 24-hour 7 surveillance. (Id. at 3). 8 The United States Constitution does not require appointment of counsel in civil cases. See 9 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 10 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 11 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 12 civil action but only in “exceptional circumstances.” Wilborn v. Escalderon, 789 F. 2d 1328, 13 1331 (9th Cir. 1986). The court may consider many factors to determine if exceptional 14 circumstances warrant appointment of counsel including, but not limited to, proof of indigence, 15 the likelihood of success on the merits, and the ability of the plaintiff to articulate his or her 16 claims pro se in light of the complexity of the legal issues involved. Rand v. Rowland, 113 F.3d 17 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en banc, 154 F.2d 952 18 (9th Cir. 1998). 19 Plaintiff has not met his “burden of demonstrating exceptional circumstances to warrant 20 reappointment of counsel at this later stage of the case. The issues involved in this case are not 21 complex. Plaintiff had capably filed his complaint, numerous motions, and successfully defended 22 against a motion for summary judgment prior to counsel’s appointment.2 Additionally, Plaintiff 23 presented his administrative claim to the appropriate federal agency before filing a civil action 24 as required by 28 U.S.C. § 2675(a). Thus, the Court continues to find that Plaintiff has 25 demonstrated an ability—and, in fact, is capable—of articulating his claims pro se. Appointed 26

27 2 Counsel was initially appointed for the limited purpose of briefing whether Plaintiff’s remaining Eighth Amendment allegation in his complaint stated a claim upon which relief may be granted considering 28 Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). (Doc. No. 70). 1 | counsel at this late stage of the case would lack the depth of familiarity with the facts of this case. 2 | To the extent that institutional lockdowns are impeding Plaintiff's ability to comply with the 3 | court’s deadlines, Plaintiff may seek an extension of time. Thus, the Court does not find 4 | reappointment of counsel warranted in this case. Plaintiff, however, may raise any concerns he 5 | has with litigating this case pro se at the pretrial conference currently scheduled for January 14, 6 | 2025. 7 As to Plaintiff's claims regarding a protective order over the location of surveillance 8 | cameras at USP-Atwater, it is not clear what relief, if any, Plaintiff seeks. Discovery closed more 9 | than a year ago on May 15, 2023. (See Doc. No. 132). On March 3, 2023, the Court held a 10 | discovery dispute hearing concerning all outstanding discovery issues and any issues with 11 discovery were resolved at that time. (See Doc. No. 131). Further, the surveillance video (Doc. 12 | No. 45-2) was previously reviewed in connection with Defendant’s motion for summary 13 || judgment and discussed at length by the previous magistrate judge in his February 26, 2019, 14 | Findings and Recommendations to deny Defendant’s motion for summary judgment (Doc. No. 59 15 || at 8-9). Moreover, the Protective Order does not prohibit the introduction of the surveillance 16 | video at trial. (See Doc. No. 127 at 1-2) (noting that Stipulated Protective Order does not entitle 17 || parties to file confidential information under seal). 18 Accordingly, it is ORDERED: 19 Plaintiff's Motion for Appointment of Counsel (Doc. No. 188) is DENIED. 20 7" | Dated: December 16, 2024 Mihaw. □□□ foareh Yack 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

24 25 26 27 28