Cobler v. United States of America

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 James Robert Cobler, No. CV-19-00348-TUC-RM 10 Plaintiff, ORDER v. United States of America, et al., 13 Defendants.

15 On January 12, 2022, the Court denied Defendant United States of America’s Motion for Summary Judgment. (Doc. 60.) The parties’ Joint Proposed Pretrial Order was due thirty days later (see Doc. 38), but to date, the parties have not filed their Joint Proposed Pretrial Order, nor have they sought an extension of the deadline for doing so. A settlement conference is set for March 10, 2022 before Magistrate Judge Leslie A.

20 Bowman. (Doc. 62.) Pending before the Court is Plaintiff’s Motion to Appoint Counsel for Limited Purpose. (Doc. 61.)

22 I. Motion to Appoint Counsel 23 Plaintiff asks the Court to appoint him counsel to assist him at the March 10, 2022 settlement conference. (Doc. 61.) He avers that defense counsel does not object to the request. (Id.) 26 There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one pursuant to 28 U.S.C. § 1915(e)(1), but courts lack the authority “to make coercive appointments of counsel” under that provision. See Mallard v. U.S. Dist.

3 Ct. for S. Dist. of Iowa, 490 U.S. 296, 310 (1989). The appointment of counsel under 28 4 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances” are present.

5 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of the plaintiff “‘to articulate his claims pro se in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 9 1328, 1331 (9th Cir. 1986)). “‘Neither of these factors is dispositive and both must be viewed together before reaching a decision.’” Id. (quoting Wilborn, 789 F.2d at 1331).

11 Having considered the aforementioned elements, the Court finds that exceptional circumstances do not warrant the appointment of counsel at this time. Although Plaintiff does not address in his Motion his likelihood of success on the merits of his claims, the Court finds that Plaintiff does have at least some likelihood of success, as evidenced by the denial of Defendant’s Motion for Summary Judgment. Accordingly, the first factor weighs in favor of the appointment of counsel. However, the second factor does not weigh in favor of the appointment of counsel at this time. Plaintiff has demonstrated an ability to sufficiently articulate his claims pro se, and he does not explain in his Motion why he requires the assistance of counsel during the settlement conference. Accordingly, the Court will deny Plaintiff’s Motion for Appointment of Counsel without prejudice.

21 II. Joint Proposed Pretrial Order 22 As set forth in the Court’s Scheduling Orders, the parties’ Joint Proposed Pretrial Order was due within thirty days after the Court’s resolution of dispositive motions. (See Docs. 16, 23, 26, 34, 38.) It is the parties’ responsibility to move for extensions of the deadlines set forth in the Court’s Scheduling Orders and to establish good cause for any requested extensions. The parties have failed to do so with respect to the deadline for filing a Joint Proposed Pretrial Order. However, given the upcoming settlement conference, the Court will sua sponte extend the deadline.

1 IT IS ORDERED that Plaintiff's Motion to Appoint Counsel (Doc. 61) is denied 2|| without prejudice.

3 IT IS FURTHER ORDERED that the parties shall submit a Joint Proposed 4|| Pretrial Order by April 11, 2022, if they do not reach a settlement prior to that date.

5 Dated this 24th day of February, 2022.

7 ff —, Dl by) 9 MNYAC Honorable Rosemary □□□□□□□ 10 United States District □□□□□ -3-