(PC) Brooks v. Smith

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIE LEE BROOKS, II, No. 2:22-CV-0062-TLN-DMC-P 12 Plaintiff, 13 v. ORDER RAINELLE SMITH, 15 Defendant.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are the following motions filed by Plaintiff: (1) renewed motions for the appointment of counsel, see ECF Nos. 118 and 128; (2) motion for the appointment of a neutral expert witness, see ECF No. 119; (3) motion for a further extension of time to file an opposition to Defendant’s motion for summary judgment, see ECF No. 124; and (4) motion to stay proceedings for 180 days, see ECF No. 130. Also before the Court is Plaintiff’s motion for injunctive relief, see ECF No. 129, which is addressed by findings and recommendations issued herewith.

25 Turning first to Plaintiff’s renewed motions for 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. See Mallard v. United States Dist. Court, 490 U.S. 28 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment of counsel because: 9 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 10 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. Id. at 1017.

13 Plaintiff argues appointment of counsel is warranted because: (1) the Court has determined that Plaintiff states cognizable claims; (2) Plaintiff is indigent; and (3) Plaintiff is at a prejudicial disadvantage in the litigation because he is proceeding pro se against Defendant who is represented by an attorney. See ECF No. 118. Plaintiff also argues that the Court should appoint counsel because he recently sustained a back injury on May 4, 2025, which will require “many months” of intense physical therapy following surgery. See ECF No. 128.

19 Attached to Plaintiff’s motion at ECF No. 128 is a progress note prepared by Plaintiff’s surgeon Paul Hong, M.D., following a post-surgical follow-up appointment on June 11, 2025. See id. at 5. In this report, Dr. Hong notes that Plaintiff underwent an L2-L5 decompression and fusion procedure approximately 4 weeks prior. See id. Plaintiff reported that he had been making progress and working diligently to walk again. See id. Plaintiff reported to the appointment using a walker. See id. 25 In the present case, the Court does not at this time find the required exceptional circumstances. The Court last addressed Plaintiff’s request for the appointment of counsel in January 2024 and denied Plaintiff’s renewed motions. See ECF No. 98. Plaintiff has not alleged any new circumstances since that time other than his recent back surgery. As to the back surgery, the June 2025 progress note attached to Plaintiff’s most recent motion for the appointment of counsel indicates that Plaintiff is making good progress at recovery. More specifically, nothing in the progress note suggests that Plaintiff will be unable to continue to prosecute this action. In this regard, the Court notes that, despite his states inability to pursue this litigation on his own following back surgery in May 2025, Plaintiff has nonetheless been able to prepare the currently pending motion for the appointment of counsel as well as a motion to compel prison officials to return his property and a motion to stay proceedings. See ECF Nos. 128, 129, and 130. To accommodate any continuing difficulties Plaintiff may be experiencing in preparing his legal paperwork following his May 2025 back surgery, the Court will provide Plaintiff additional time to file an opposition to Defendant’s pending motion for summary judgment.

11 Next, the Court addresses Plaintiff’s motion for appointment of a neutral medical expert. Plaintiff seeks an order appointing a neutral expert on mental health and suicide prevention. See ECF No. 119. In support of his motion, Plaintiff cites Federal Rule of Evidence 706 and argues that appointment of a medical expert is necessary to address his claims of medical misdiagnosis resulting from deliberate indifference. See id. Defendant opposes, arguing that appointment of a medical expert under Rule 706 is not warranted where such expert will be asked to advocate for one side or the other. See ECF No. 122. Defendant contends that a medical expert can only be appointed under Rule 706 to assist the Court, not to collect and interpret evidence to assist a party. See id. 20 Defendants also argue that appointment of a neutral medical expert under Rule 706 for the purpose of advising the Court is also not warranted. See id. at 3-7 (citing Gorton v. Todd, 793 F. Supp. 2d 1171 (E.D. Cal. 2011). Under Gorton, four factors are relevant in determining whether appointment of an expert under Rule 706 is warranted. See Gorton, 793 F. Supp. At 1185. These factors are: (1) whether expert testimony is necessary or significantly useful for the trier of fact to comprehend a material issue in a case; (2) whether the moving party has produced some evidence, admissible or otherwise, that demonstrates a serious dispute that could be resolved or understood through expert testimony; (3) whether a party’s circumstances or conditions limit the effectiveness of the adversary process to result in accurate factfinding; and (4) whether the basis of the plaintiff’s claims entitle him to special consideration by the courts.

2 See id. 3 The Court agrees with Defendant that these factors weigh against appointment of an expert witness under Rule 706. This case involves a single claim of deliberate indifference to Plaintiff’s serious mental health condition. Whether Defendant was subjectively aware of Plaintiff’s medical condition and whether Defendant objectively disregarded a substantial risk of harm are not questions that a factfinder would require a medical expert to answer. See Rapalo v. Lopez, 2017 WL 1199669, at *2 (E.D. Cal. 2017). Further, a review of Defendant’s pending motion for summary judgment indicates that the evidence at issue in this case is not complex or contradicted such that the trier of fact cannot understand a material issue absent an expert witness.

11 Notably, Plaintiff has not presented with his motion evidence demonstrating a serious dispute which can only be resolve with expert testimony. While the Court finds that Plaintiff’s pro se status and incarceration limit the effectiveness of the adversarial process, Plaintiff has demonstrated an adequate ability to represent himself. Thus, the third factor only somewhat favors appointment of an expert witness. The fourth factor, however, weighs against appointment of an expert because there is nothing significant about Plaintiff’s claim, which is a typical medical deliberate indifference claim, that warrants special consideration.

18 Finally, the Court addresses Plaintiff’s two motions related to briefing on Defendant’s pending motion for summary judgment. In ECF No. 124, Plaintiff seeks an extension of time to file an opposition brief. See id. Plaintiff requests additional time following the Court’s ruling on his motions for appointment of counsel and appointment of an expert to prepare an opposition. See id. In ECF No. 130, Plaintiff seeks an order staying proceedings for 180 days to allow him to complete his recovery following back surgery. See id. Plaintiff also states that a stay is appropriate because, after his surgery, he was transferred to the California Health Care Facility (CHCF) for recovery and post-operative care, but that all his legal materials are still at his prior institution, Mule Creek State Prison (MCSP). See id. As explained in the accompanying findings and recommendations, the Court cannot order non-party prison officials – at either CHCF or MCSP – to return Plaintiff’s materials. The Court is also not inclined to order || a sweeping 180-day stay of all proceedings given evidence indicating that Plaintiffs post-surgical || recovery is going well, and Plaintiffs condition is steadily improving. Instead, the Court will | grant Plaintiff's motion for additional time to file an opposition to Defendant’s motion for || summary judgment.

5 Accordingly, IT IS HEREBY ORDERED as follows: 6 1. Plaintiff's renewed requests for the appointment of counsel, ECF Nos. 118 | and 128, are DENIED.

8 2. Plaintiff's motion for appointment of a neutral medical expert, ECF No. || 119, is DENIED.

10 3. Plaintiff's motion for a stay of proceedings, ECF No. 130, is DENIED.

1] 4. Plaintiff's motion for an extension of time, ECF No. 124, is GRANTED.

12 5. Plaintiff's opposition to Defendant’s motion for summary judgment is due || within 30 days of the date of this order.

15 | Dated: August 13, 2025 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE