The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL, RESOLVING PLAINTIFF'S MOTIONS, DISCHARGING ORDER TO SHOW CAUSE, VACATING TELEPHONIC TRIAL CONFIRMATION HEARING, AND DIRECTING DEFENDANTS TO FILE PRETRIAL STATEMENT ON OR BEFORE FEBRUARY 24, 2010 (Docs. 62, 68-71)
Jury Trial Date: March 15, 2010
Order on Pretrial Matters
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff John Ray Dynes, a prisoner proceeding pro se and in forma pauperis. Plaintiff is currently incarcerated at the Fresno County Jail. This action is proceeding on Plaintiff's amended complaint, filed April 24, 2008, against Defendants Juan Medina and David Williams for use of excessive physical force, in violation of the Eighth Amendment. Plaintiff's claim arises from an incident which occurred while he was incarcerated at Kern Valley State Prison. This matter is set for a telephonic trial confirmation hearing on February 24, 2010, and jury trial on March 15, 2010.
Pursuant to the Court's second scheduling order, filed on August 24, 2009, Plaintiff's pretrial statement was due on or before January 4, 2010. Plaintiff was warned that the failure to file his pretrial statement may result in the imposition of sanctions, including dismissal of this action. Plaintiff failed to file a pretrial statement, and on January 20, 2010, the Court ordered Plaintiff to show cause why this action should not be dismissed as a sanction. On January 26, 2010, Plaintiff filed a response to the order and submitted what he represented was his pretrial statement originally submitted on December 16, 2009.
In a second order to show cause, filed on February 1, 2010, the Court stated: The Court rejects Plaintiff's contention that the document submitted is his pretrial statement. In ordering Plaintiff to file a pretrial statement on or before January 4, 2010, the Court provided Plaintiff with a copy of Local Rule 281, then Local Rule 16-281, which sets forth the information that must be included in a pretrial statement. Although the Court is skeptical at best, assuming Plaintiff mailed the filing in December and it was not received by the Court, the document submitted by Plaintiff on January 26, 2010, is not a pretrial statement and does not even arguably comply with Local Rule 281.
Further, although Plaintiff altered the date to represent it was signed it on December 16, 2009, the document is a photocopy and the original date of May 2007 is clearly visible from underneath the altered date of December 10, 2009.*fn1 Because the document does address Plaintiff's allegations in this action, the Court can only speculate that it was prepared for Plaintiff by a jailhouse lawyer for litigation purposes but prior to the date this suit was initiated. Regardless of its origin, the filing cannot possibly be Plaintiff's pretrial statement drafted in compliance with the Court's scheduling order given that the document is not a pretrial statement and was originally prepared in 2007, prior to the filing of this suit and prior to the issuance of the scheduling order requiring submission of a pretrial statement. (Doc. 62, 2:2-17.)
On February 9, 2010, Plaintiff filed four self-described motions in response to the second order to show cause, and on February 10, 2010, Defendants filed an opposition in which they argue that dismissal of this action is appropriate given Plaintiff's failure to file his pretrial statement and Plaintiff's misrepresentations to the Court.
II. Plaintiff's Motion for the Appointment of Counsel
In one motion, Plaintiff again seeks the appointment of counsel and cites to his lack of understanding of what pretrial statement is as grounds for the appointment. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the ...