ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN P A R T A N D D E N Y IN G IN P A R T DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF Nos. 47, 56, 57)
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF EXPERT WITNESS, MOTION FOR APPOINTMENT OF COUNSEL, AND MOTION TO SET A SETTLEMENT / CONFERENCE
I. Findings and Recommendations
Plaintiff Donald J. Ackley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 29, 2010, Defendants filed a motion for summary judgment, and Plaintiff filed an opposition on December 22, 2010. On June 1, 2011, the Magistrate Judge issued findings and recommendations recommending that Defendant's motion for summary judgment be granted in part and denied in part. The undersigned has considered Plaintiff's objections, filed on July 1, 2011.
Plaintiff objects to the findings and recommendations because he alleges that Defendants Uribe and Carroll failed to protect him from being struck by a round fired by Defendant Wright. In both the complaint and declaration filed in opposition to the motion for summary judgment, Plaintiff contended and provided evidence that the fight was over at the time Defendant Wright fired the weapon. As such, the Magistrate Judge correctly found a disputed issue of fact on Defendant Wright's use of force. However, prior to the findings and recommendations being filed, Plaintiff only provided evidence that Defendants Uribe and Carroll did not intervene to stop the attack and subsequent shooting. In the objections, Plaintiff now alleges that at the time of the shooting the fight was not only over, it was Defendant Uribe who made Plaintiff stand up, resulting in Defendant Wright shooting Plaintiff. No evidence concerning this fact was ever presented in the complaint or declaration in response to the Motion for Summary Judgment. As such, this allegation cannot be considered. Factual assertions that could have been but were not presented to the Magistrate Judge should be given no consideration when the court is deciding whether to adopt Findings and Recommendations. Wade v. Liles, 2007 WL 2481881, *2 (E.D.Cal. 2007); Sundaram v. County of Santa Barbara, 2001 WL 540515, *1 (C.D.Cal. 2001); Beam System, Inc. v. Checkpoint Systems, Inc., 1997 WL 423113, *9 n.9 (C.D.Cal. 1997). Considering Plaintiff's allegations in the complaint and declaration and taking these allegations as true, there is nothing to indicate that Defendants Uribe or Carroll were aware that Plaintiff was in danger of being struck by the round fired and failed to act in response to such knowledge. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the findings and recommendations to be supported by the record and by proper analysis.
II. Motion for Settlement Conference
Plaintiff also requests that the case be referred for settlement. The Federal Rules of Civil Procedure authorize settlement discussions at any pretrial conference. Fed.R.Civ.P. 16(c)(9). While federal courts have the authority to require the parties to engage in settlement conferences, they have no authority to coerce settlements. Goss Graphic Systems, Inc. v. DEV Industries, Inc., 267 F.3d 624, 627 (7th Cir. 2001.) Defendants have not indicated to the Court that they are willing to participate in a settlement conference. As Plaintiff was previously advised, no settlement conference will be scheduled until such time as both parties agree to participate in one.
III. Motion for Appointment of Counsel
Plaintiff has requested the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Without a reasonable method of securing and compensating counsel, this court will seek volunteer counsel only in the most serious and exceptional cases.
In the present case, the Court does not find the required exceptional circumstances. See Rand, 113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases almost daily. Therefore, Plaintiff's request for the appointment of counsel shall be denied.
IV. Withdrawal of Request for Jury Trial
In his objection Plaintiff requests a court trial. Claims brought under 42 U.S.C. § 1983 are triable by jury, Solis v. County of Los Angeles, 514 F.3d 946, 953-54 (9th Cir. 2008); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999), and Defendants timely demanded a trial by jury in their answer filed on April 20, 2009. Fed. R. Civ. Proc. 38(b). Accordingly, unless ...