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, ORDER DENYING MOTION FOR THE APPOINTMENT OF COUNSEL 13 v. (ECF No. 199) 14 J. GONZALES, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under

. The matter was referred to a United States 19 Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. This case is at the 20 trial phase of the proceedings. See ECF No. 195 (fourth scheduling order (trial)). 21 Plaintiff has filed a motion for the appointment of counsel. ECF No. 199. For the reasons 22 stated below, the motion will be denied. 23 I. MOTION FOR THE APPOINTMENT OF COUNSEL 24 In support of the motion for the appointment of counsel, Plaintiff ultimately states that on 25 April 4, 2025, he was told by a doctor that he is going to be sent to an outside hospital for 26 treatment. ECF No. 199. He further states that he does not know how long his treatment will 27 take, but that he will keep the Court informed.

As a result, Plaintiff request that the Court 28 appoint him counsel who can represent him in any upcoming court dates.

1 This is the second motion for the appointment of counsel that has been docketed by Plaintiff in 2 the past two days. See ECF No. 197 (previous motion to appoint counsel, docketed 4/9/25). 3 II. APPLICABLE LAW 4 District courts lack authority to require counsel to represent indigent prisoners in section 5 1983 cases. Mallard v. United States Dist. Court,

(1989). In exceptional 6 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

(e)(1). Terrell v. Brewer,

(9th Cir. 1991); Wood v. 8 Housewright,

(9th Cir. 1990). When determining whether “exceptional 9 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 10 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 11 legal issues involved. Palmer v. Valdez,

(9th Cir. 2009) (district court did not 12 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 13 circumstances is on the plaintiff.

Circumstances common to most prisoners, such as lack of 14 legal education and limited law library access, do not establish exceptional circumstances that 15 warrant a request for voluntary assistance of counsel. 16 III. DISCUSSION 17 A. Motion for the Appointment of Counsel 18 As stated in the Court’s order issued on April 11, 2025 (see ECF No. 200), which denied 19 Plaintiff’s last motion for the appointment of counsel, docketed April 9, 2025 (see ECF No. 197), 20 the proceedings to date in this matter indicate that Plaintiff may have success with this case on its 21 merits given that viable claims were identified in it some time ago, and it has survived summary 22 judgment. See ECF Nos. 52, 57 (findings and recommendations regarding motion for summary 23 judgment; order adopting same in part, respectively). Furthermore, since this case was filed back 24 in 2017, Plaintiff has adequately represented himself without legal representation. 25 Finally, Plaintiff’s possible transport to a different facility for treatment of an illness does 26 not warrant the appointment of counsel. At this stage of the proceedings, Plaintiff should have 27 little need – if any – for access to the law library. Plaintiff has already filed his pretrial statement. 28 See ECF No. 196. Therefore, prior to the pretrial hearing and trial, all Plaintiff has left to do is 1 file a proper motion for the attendance of witnesses and submit applicable money orders related to 2 their costs. Arguably, Plaintiff can quickly do those things before he is transported elsewhere for 3 medical care--he does not need counsel appointed to have those tasks done for him. For these 4 reasons, Plaintiff has failed to meet his burden of demonstrating exceptional circumstances that 5 warrant the appointment of counsel. Therefore, the motion will be denied. 6 B. Plaintiff’s Choice to Refuse Treatment 7 Of equal importance in Plaintiff’s motion for the appointment of counsel, is the following. 8 The Court notes in the motion that Plaintiff states that since January 15, 2025, he has been 9 refusing the antibiotics used to treat his spinal bacterial infection, ones which he states he is 10 required to take twice a day for the rest of his life. ECF No. 199. Plaintiff states that he is doing 11 this in order to protest the claimed inadequate medical care that he has been receiving at the R.J. 12 Donovan Correctional Facility. See

13 It is undisputed that Plaintiff has a right to protest his alleged inadequate medical care, in 14 so doing however, Plaintiff is herein informed that should his voluntary choice not to take any 15 medically prescribed and required medication, if done so without good reason, somehow prevents 16 him from participating in the pretrial and trial proceedings of this case, given the history of delays 17 in these proceedings as well as the fact that a significant amount of court resources have gone into 18 setting and preparing this case for trial, absent a showing of good cause, the current pretrial and 19 trial dates will not be disturbed and his failure to participate in them as required will likely result 20 in a recommendation that this case be dismissal with prejudice. 21 Finally, given that Plaintiff has had advance notice that he may be sent to receive 22 treatment at another facility in the near future, it is highly recommended that Plaintiff prepare, 23 serve, and file any motions and papers that have been identified in the fourth scheduling 24 order (trial) (see ECF No. 195) before he is moved for treatment and/or he has no access to 25 his legal materials or to a prison law library. 26 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the appointment 27 of counsel (ECF No. 199) is DENIED without prejudice. 28 1 IT IS SO ORDERED. 2

3 Dated: April 11, 2025 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 4

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