United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION TO FIND DEFENSE
COUNSEL IN CONTEMPT AND FOR APPOINTMENT OF COUNSEL (Doc.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
case is scheduled for a settlement conference on July 10,
2019. (Doc. 41.) As a precursor, the Court required the
parties to initiate settlement discussions among themselves.
(Id.) On June 19, 2019, Plaintiff filed a motion in
which he seeks to have defense counsel held in contempt and
replaced, that a new settlement conference thereafter be
scheduled, and that counsel be appointed to represent him.
(Doc. 45.) For the reasons discussed below, Plaintiff's
motion is DENIED.
CONTEMPT OF COURT
as here, the relief sought involves neither punitive nor
criminal contempt to punish or vindicate the Court, but
rather compulsory and compensatory sanctions, to compel a
party to comply or to compensate a party for another's
lack of compliance, then the proceeding is for civil
contempt. See, United States v. Asay, 614 F.2d 655,
659 (9th Cir. 1980); Shillitani v. United
States, 384 U.S. 364, 369-70 (1966).
elements required for civil contempt include a specific and
definite court order and a failure to comply with the order,
which consists of not taking all the reasonable steps within
one's power to insure compliance with the order.
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191
(1949); Balla v. Idaho State Bd. Of Corrections, 869
F.2d 461, (9th Cir. 1989). Willfulness is not a
required element of civil contempt, and the absence of
willfulness does not relieve one from a civil contempt.
McComb, 336 U.S. at 191; United States v.
Asay, 614 F.2d at 661. A petitioner for contempt has the
burden of proving a prima facie case by clear and convincing
proof. Balla v. Idaho State Bd. Of Corrections, 869
F.2d 461, 466 (9th Cir. 1989). Legal defenses to
civil contempt include substantial compliance with the order,
defined as having taken all reasonable steps to comply with
the court order. Balla, 869 F.2d at 466.
Court has read Defendants' confidential settlement
conference statement and it appears that defense counsel
complied with the Court's orders. The fact that Plaintiff
and defense counsel disagree as to the proper settlement,
does not provide basis to find contempt. If that were so, all
actions which do not settle would subject one side or the
other to contempt proceedings, which would be unreasonable
and impracticable. Further, any failure on the part of either
side to submit a meaningful settlement offer will be cured at
the time of the settlement conference.
APPOINTMENT OF COUNSEL
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 (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.
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 complexity of the legal
issues involved.” Id. (internal quotation
marks and citations omitted).
present case, the Court does not find the required
exceptional circumstances. Even if the Court assumes 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 daily. Further, at this early stage in the
proceedings, the Court cannot determine that Plaintiff is
likely to succeed on the merits and, based on a review of the
record in this case, the Court does not find that Plaintiff
cannot adequately articulate his claims. Id.
foregoing reasons, Plaintiff's motion ...