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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THOMAS EUGENE MOORE,

Plaintiff, No. CIV S-04-1895 MCE EFB PS

vs.

THE AMERICAN TOBACCO 

COMPANY, INC., et al., 

Defendants. ORDER

 /

On November 7, 2006, plaintiff filed a “motion to appoint counsel.” By that

motion, plaintiff seeks “assignment of counsel in further litigation of this matter.” The court

notes that plaintiff has filed a notice of appeal with regard to the district judge’s September 28,

2006 order dismissing defendant Brown & Williamson from this action. By findings and

recommendations dated September 29, 2006, the undersigned recommended that the remaining

defendants also be dismissed and that the case be closed. (Plaintiff has requested additional time

to object to those findings and recommendations, which the court grants, as discussed herein). 

The court assumes that by “further litigation of this matter” plaintiff means to request counsel for

assistance with the currently pending appeal and plaintiff’s forthcoming objections to the

findings an recommendations. 

////

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1

 The court again notes, as it did in its September 29, 2006 findings and

recommendations, that this case was removed from state court on September 10, 2004. Plaintiff

contends that he is proceeding in this case in forma pauperis, despite the fact that he never filed

such an application with this court. The court notes plaintiff’s familiarity with the process to

apply for in forma pauperis status: a cursory review of this court’s records reveals at least 26

actions initiated by plaintiff – almost all of which include his application to proceed in forma

pauperis. Even if plaintiff had properly sought to obtain in forma pauperis status, this court

would find that the appointment of counsel is not merited based on a lack of exceptional

circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.1984) (motions to appoint

counsel granted only in exceptional circumstances and at discretion of trial court).

2

“The decision to appoint counsel is left to the sound discretion of the district

court. Johnson v. United States Dep’t of the Treasury, 27 F.3d 415, 416-17 (9th cir. 1994).

“Three factors are relevant to [a] trial court’s determination of whether to appoint counsel: (1)

plaintiff’s financial resources; (2) the efforts made by the plaintiff to secure counsel on his or her

own; and (3) the merit of the plaintiff’s claim.’” Id. (quoting Johnson v. United States Dep’t of

the Treasury, 939 F.2d 820, 824 (9th Cir. 1991)). In his motion, plaintiff alleges a lack of

financial resources and states simply that he is “unable to obtain counsel.” Although plaintiff is

presently incarcerated and presumably lacking in resources and access to counsel, plaintiff has

offered no evidence to support these allegations.1 Plaintiff does not state whether or not he has

attempted to find an attorney willing to assist him with this action on either a paid or pro bono

basis. 

In short, this action involves plaintiff’s claim for several million dollars in

damages for alleged physical and psychological injuries caused by his addiction to tobacco. 

Plaintiff has failed to diligently prosecute this matter since he filed it in state court in 2002, and

only now – more than six weeks after the district judge dismissed one of the two defendants who

ever received notice of this action – does plaintiff seek appointment of counsel. This court finds

that this case lacks sufficient merit to warrant the appointment of counsel by the court. Based on

this finding, and plaintiff’s failure to make a showing regarding his financial resources and

efforts to secure counsel, the court hereby denies plaintiff’s request for the appointment of

counsel. 

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3

In addition to plaintiff’s request for appointment of counsel, plaintiff seeks an

extension of time to file objections to the findings and recommendations filed in this case on

September 29, 2006. In his requests for an extension, filed on October 16, 2006 and November

7, 2006, plaintiff cites difficulties in accessing the prison law library in addition to other

difficulties preventing his timely filing of objections. Good cause appearing, the request will be

granted. Plaintiff shall have thirty (30) days from the date of service of this order in which to file

objections to the findings and recommendations. No further extensions of time will be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s request for appointment of counsel is DENIED; 

2. Plaintiff’s request for an extension of time is GRANTED; and

3. Plaintiff is granted thirty (30) days from the date of this order in which to file

objections. No further extensions of time will be granted. 

DATED: November 8, 2006.

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