Huckabee v. Medical Staff at CSATF et al

Filing 281

ORDER DENYING 280 Plaintiff's Motion for Trial Date and Request for Appointment of Counsel signed by Magistrate Judge Barbara A. McAuliffe on 3/29/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY CRAIG HUCKABEE,

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Plaintiff,
v.
MEDICAL STAFF AT CSATF, et al.,

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Case No. 1:09-cv-00749-DAD-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR TRIAL DATE AND REQUEST FOR
APPOINTMENT OF COUNSEL
(ECF No. 280)

Defendants.

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Plaintiff Anthony Craig Huckabee (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s fifth amended complaint against Defendants Wu, Jimenez, and McGuinness for

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deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment.

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Specifically, Plaintiff’s claims are against: (1) Defendant Wu for reducing the strength of

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Plaintiff’s prescription eye drops on December 21, 2004; (2) Defendant Jimenez for assuring

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Plaintiff that he would personally handle Plaintiff’s refill request for his eye drops on July 12, 14,

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and 18, 2005, but the medication was not refilled; and (3) Defendant McGuinness, who was

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aware of the delay in Plaintiff’s glaucoma medication in May 2005 and February 2006. (ECF

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Nos. 272, 274.)

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On March 22, 2019, Defendant McGuinness filed a motion for summary judgment. (ECF
No. 277.) Any response or opposition to that motion from Plaintiff is currently due on or before
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April 15, 2019.
On March 25, 2019, the Court granted Defendants Wu and Jimenez’s motion to modify

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the Court’s scheduling order and extended the dispositive motion deadline for Plaintiff and

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Defendants Wu and Jimenez to April 22, 2019. (ECF No. 279.)
Currently before the Court is Plaintiff’s motion for trial date and request for appointment

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of counsel, filed March 28, 2019. (ECF No. 280.) Plaintiff states that, in an attempt to be diligent

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with his case, he requests that the Court set a trial date at the earliest time, and further requests

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that the Court appoint Plaintiff counsel for representation. (Id.) Plaintiff does not otherwise

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provide any reasons for his request.
Plaintiff’s request to set this matter for trial is premature. There is currently a pending

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motion for summary judgment by Defendant McGuinness, to which Plaintiff is required to file a

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response or opposition pursuant to Federal Rule of Civil Procedure 56. Plaintiff’s opposition to

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that motion is currently due on or before April 15, 2019.

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Furthermore, the Court has granted the remaining parties an extension until April 22, 2019

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to file any other dispositive motions. If additional dispositive motions are filed, oppositions to

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those motions must also be submitted. The Court declines to set a trial date until all dispositive

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motions are fully briefed, if not fully resolved.

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As to Plaintiff’s request for appointment of counsel, Plaintiff has been repeatedly

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informed that he does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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As Plaintiff has provided no explanation for his renewed request for appointment of

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counsel, the Court cannot find that Plaintiff has presented any of the required exceptional

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circumstances that would warrant appointment of counsel in this action.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for trial date and request
for counsel, (ECF No. 280), is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 29, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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