(PC) Luevano v. Jenkins

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE LUEVANO, No. 2:22-cv-0091 KJN P 12 Plaintiff, 13 v. ORDER ANTHONY JENKINS, et al., 15 Defendants.

17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. § 1983.

19 Defendants’ Motion to Opt Out 20 Defendants seek leave to opt out of the post-screening ADR project based on their discussion with plaintiff, review of the case and his settlement demand, and contend plaintiff failed to exhaust administrative remedies prior to suit. In response, plaintiff filed a request for appointment of counsel, claiming he would like to have a settlement conference and would accept the sum of $50,000.00. Having reviewed defendants’ motion and plaintiff’s response, the Court finds that the request to opt out is supported by good cause. The June 27, 2023 settlement conference was previously vacated by Magistrate Judge Claire. (ECF No. 36.) Good cause appearing, defendant’s motion to opt out of the ADR project is granted.

28 //// || Plaintiff's Motion for Counsel 2 District courts lack authority to require counsel to represent indigent prisoners in section || 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional | circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 | U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. || Housewnght, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional || circumstances” exist, the court must consider plaintiffs 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. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not || abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional || circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of | legal education and limited law library access, do not establish exceptional circumstances that || warrant a request for voluntary assistance of counsel.

14 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his || burden of demonstrating exceptional circumstances warranting the appointment of counsel at this | time. Plaintiff's motion is denied without prejudice.

17 Accordingly, IT IS HEREBY ORDERED that 18 1. Defendants’ motion to opt out (ECF No. 38) is granted; 19 2. The ADR stay of this action is lifted; 20 3. Within thirty days from the date of this order, defendants shall file the motion for || summary judgment on administrative exhaustion grounds or shall otherwise respond to the || complaint; and 23 4. Plaintiffs motion for the appointment of counsel (ECF No. 39) is denied without || prejudice.

25 || Dated: August 3, 2023 %6 Foci) Aharon 27 KENDALL J. NE /uev009 L.opt.31 UNITED STATES MAGISTRATE JUDGE