(PC) Smith v. Gonzales

• Court: District Court, E.D. California
• Decided: April 22, 2024
• Docket: 1:17-cv-00436
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, No. 1:17-cv-00436 KES GSA (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL 14 J. GONZALES, et al., (ECF No. 161) 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 He has filed a motion for the appointment of counsel. ECF No. 161. For the reasons stated 19 below, the motion will be denied. 20 I. MOTION FOR THE APPOINTMENT OF COUNSEL 21 In support of Plaintiff’s motion for the appointment of counsel, Plaintiff states in part that 22 he is imprisoned and that the issues in this case are complex. ECF No. 161 at 1. He also asserts 23 that he has limited access to the prison law library, that he has limited knowledge of the law, and 24 that he has a tenth-grade education. Id. He contends that the appointment of counsel will better 25 enable him to present evidence and cross-examine witnesses given the fact that the case will 26 likely involve conflicting testimony. ECF No. 161 at 2. Finally, Plaintiff states that since 27 November 2022, he has had a spinal infection that prevents him from sitting or standing for long 28 periods of time and that has left him in severe pain. Id. 1 II. DISCUSSION 2 District courts lack authority to require counsel to represent indigent prisoners in section 3 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 4 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 5 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 6 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 7 circumstances” exist, the Court must consider a plaintiff’s likelihood of success on the merits as 8 well as the ability of a plaintiff to articulate his claims pro se in light of the complexity of the 9 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 10 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 11 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 12 legal education and limited law library access, do not establish exceptional circumstances that 13 warrant a request for voluntary assistance of counsel. 14 This case has been on the docket since 2017, and currently it is at the trial stage of the 15 proceedings. See ECF Nos 1, 128 (original complaint; second scheduling order, respectively). 16 Since it was filed, Plaintiff has satisfactorily navigated the proceedings filing the original 17 complaint and a first amended complaint (ECF Nos. 1, 12); filing multiple motions for extensions 18 of time (ECF Nos. 37, 74, 75, 83, 88, 141), and filing and multiple motions for the appointment 19 of counsel (see ECF Nos. 42, 66, 68, 111, 119, 123, 132, 149). Thus, it is clear that Plaintiff 20 should be able to adequately prepare his case for trial without legal assistance. 21 Furthermore, neither is the fact that Plaintiff is currently dealing with health issues which 22 allegedly prevent him from sitting or standing for extended periods of time, persuasive. Many 23 litigants who are similarly situated are still able to adequately prosecute their cases. Finally, 24 Plaintiff has not indicated that his physical ailments are affecting his ability either to understand 25 the proceedings or to complete the tasks necessary to move this case forward. For these reasons, 26 having considered the factors under Palmer, the Court finds that Plaintiff has failed to meet his 27 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 28 time. 1 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the appointment of 2 counsel (ECF No. 161) is DENIED without prejudice. 3 IT IS SO ORDERED. 4

5 Dated: April 19, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6

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