(PC) Fairchild-Littlefield v. Attinello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GIGI FAIRCHILD-LITTLEFIELD, 1:19-cv-01579-JLT-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO SCHEDULE JURY 13 vs. TRIAL AND FOR APPOINTMENT OF COUNSEL 14 ATTINELLO, et al., (ECF No. 47.) 15 Defendants. 16 17 18 19 20 I. BACKGROUND 21 Gigi Fairchild-Littlefield (“Plaintiff”) is a state prisoner proceeding pro se with this civil 22 rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s Second 23 Amended Complaint filed on November 23, 2020, against defendant Valerie Attinello for 24 inadequate medical care. (ECF No. 17.) Plaintiff’s motion for summary judgment filed on March 25 29, 2023, and Defendant’s motion for summary judgment filed on May 22, 2023, are pending. 26 (ECF Nos. 46, 51.) 27 On March 29, 2023, Plaintiff filed a motion for the Court to schedule a jury trial in this 28 case and to appoint counsel for her. (ECF No. 47.) 1 II. MOTION TO SCHEDULE JURY TRIAL 2 Plaintiff requests the Court to schedule a jury trial in this case. Plaintiff’s request is 3 premature. It is not time for trial in this case because the parties’ respective motions for summary 4 judgment are pending. If needed, the Court shall schedule a jury trial after the motions for 5 summary judgment have been resolved. Therefore, Plaintiff’s motion for jury trial filed on March 6 29, 2023, shall be denied as premature. 7 III. MOTION FOR APPOINTMENT OF COUNSEL 8 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 9 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 10 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 11 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 12 certain exceptional circumstances the court may request the voluntary assistance of counsel 13 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 14 Without a reasonable method of securing and compensating counsel, the court will seek 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 17 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 19 In the present case, the court does not find the required exceptional circumstances. It is 20 true that on February 3, 2022, the Court found that Plaintiff’s allegations in the Second Amended 21 Complaint “were sufficient to state an Eighth Amendment deliberate indifferent claim at the 22 screening stage.” (ECF No. 23 at 5:14-15.) However, this finding is not a determination that 23 Plaintiff is likely to succeed on the merits. Plaintiff’s medical claims are not complex, and based 24 on a review of the record in this case Plaintiff can adequately articulate her claims and respond 25 to court orders. Thus, the court does not find the required exceptional circumstances and 26 therefore Plaintiff’s motion for appointment of counsel shall be denied without prejudice to 27 renewal of the motion at a later stage of the proceedings. 28 1 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 2 shall be denied, without prejudice. 3 IV. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s request for the Court to schedule a jury trial in this case, filed on March 6 29, 2023, is DENIED as premature; and 7 2. Plaintiff’s motion for appointment of counsel, filed in the same March 29, 2023 8 motion referenced above, is DENIED without prejudice. 9 IT IS SO ORDERED. 10 11 Dated: June 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28