United States District Court, E.D. California
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
On June 5, 2014, plaintiff filed a motion to vacate any settlement agreement between the parties. At the time, neither party had filed a notice of settlement with the court. On June 9, 2014, however, defendants filed a stipulation signed by both parties dismissing this action with prejudice. Plaintiff apparently had signed the stipulation back on May 8, 2014. Defense counsel, however, did not sign the stipulation until June 9, 2014. The Clerk of the Court reviewed the stipulation and automatically closed the case in error. Upon review of the record, it appears that the parties have not reached a settlement agreement in this case. Specifically, plaintiff declares in his pending motion before the court that he is a mental health patient and did not understand the nature of the proposed settlement agreement that he signed. Under these circumstances, the court declines to dismiss this action pursuant to the stipulation and will direct the Clerk of the Court to re-open this matter.
Plaintiff has also filed a motion for appointment of counsel. As the court previously advised plaintiff, 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 Dist. Court , 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright , 900 F.2d 1332, 1335-36 (9th Cir. 1990).
The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look , 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. In the present case, the court does not find the required exceptional circumstances.
Accordingly, the court will deny plaintiff's motion for appointment of counsel.
Finally, the court observes that this is the second time the parties may have come close to settling this case. Last year, the parties filed a notice of settlement agreement, prompting the court to vacate its discovery and scheduling order. However, plaintiff subsequently sent a letter to defense counsel wherein he stated that he was going to withdraw from the negotiated settlement agreement and would not sign the release and stipulation for dismissal. The parties then proceeded with this litigation. The court notes that if the parties are inclined to participate in a court-supervised settlement conference, the court would be willing to schedule one in this case. In the meantime, however, the court will re-set a schedule for this litigation.
Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall proceed in accordance with paragraphs 4-8 of this order.
Should this matter proceed to trial the court will, by subsequent order, require the parties to file pretrial statements. In addition to the matters required to be addressed in the pretrial statement in accordance with Local Rule 281, plaintiff will be required to make a particularized showing in the pretrial statement in order to obtain the attendance of witnesses at trial. Plaintiff is advised that failure to comply with the procedures set forth below may result in the preclusion of any and all witnesses named in the pretrial statement.
At the trial of this case, the plaintiff must be prepared to introduce evidence to prove each of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff's responsibility to produce all of the evidence to prove the case, whether that evidence is in the form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, plaintiff must follow certain procedures to ensure that the witnesses will be at the trial and available to testify.
I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily
An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless this court orders the warden or other custodian to permit the witness to be transported to court. This court will not issue such an order unless it is satisfied that:
1. The prospective witness is willing ...