2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 S. Seanah Dixon, Case No. 2:22-cv-01412-APG-DJA 6 Plaintiff, 7 Order v. 8 Stacy Barrett, et al., 9 Defendants. 10 11 12 This is a civil rights action arising out of events that took place while Plaintiff was 13 incarcerated at Ely State Prison and High Desert State Prison. Plaintiff sues Defendants for 14 damages, declaratory relief, and injunctive relief, alleging claims for deliberate indifference to 15 serious medical needs and retaliation. Plaintiff now moves for a court order requiring the U.S. 16 Marshals Service to serve Defendants Sandra Gobler and Steven Salkoff (ECF No. 62), for 17 appointment of counsel (ECF No. 63), to reinstate her motion to extend time (ECF No. 103), and 18 for the Court to review her motion for appointment of counsel on an emergency basis (ECF No. 19 116). 20 Because the Court finds that Plaintiff has demonstrated good cause for another 21 opportunity to serve Gobler and Salkoff, it grants Plaintiff’s motion for an order regarding 22 service. (ECF No. 62). Because the Court finds that Plaintiff has demonstrated that she did not 23 intend to withdraw her previous motion to extend time, the Court will grant her motion to 24 reinstate that motion and consider the merits of the motion to extend time. (ECF No. 103). 25 Because the Court finds that Plaintiff has demonstrated exceptional circumstances, the Court 26 grants her motion for appointment of counsel. (ECF No. 63). Because the Court grants the 27 motion for appointment of counsel, it denies Plaintiff’s emergency motion regarding the motion 1 I. Discussion. 2 A. The Court grants Plaintiff’s motion for a Court order regarding service (ECF No. 62). 3 4 Plaintiff moves for the Court to order the U.S. Marshals Service to attempt service on 5 Defendants Gobler and Salkoff. Plaintiff explains that the Attorney General filed Gobler and 6 Salkoff’s last known addresses under seal and that Plaintiff then submitted two USM 285 forms 7 indicating that those addresses were under seal. (ECF No. 62 at 5, 7). However, Plaintiff 8 received notice that the U.S. Marshals Service could not serve the process because Plaintiff did 9 not provide addresses. (Id. 11). No party filed a response. 10 The Court grants Plaintiff’s motion and will grant her an extension to serve Gobler and 11 Salkoff. Plaintiff may rely on the U.S. Marshals Service for service under Federal Rule of Civil 12 Procedure 4(c)(3). Additionally, under Federal Rule of Civil Procedure 4(m), if a plaintiff shows 13 good cause for failure to serve a defendant within ninety days of the complaint being filed, the 14 Court must extend the time for service for an appropriate period. 15 In its prior order granting Plaintiff’s motion for service on Gobler and Salkoff, the Court 16 gave Plaintiff until July 3, 2023, to serve Defendants. Plaintiff filed the instant, renewed motion 17 for service on June 6, 2023. The Court notes that, on Plaintiff’s USM 285 forms, Plaintiff wrote 18 that each address was “filed under seal with court,” but Plaintiff did not specify where the U.S. 19 Marshals Service could find Gobler and Salkoff’s addresses under seal. The Court will thus give 20 Plaintiff one more opportunity to attempt service on these Defendants. Plaintiff must fill out new 21 USM-285 forms and send them directly to the U.S. Marshals Service. In the blank space asking 22 for each Defendant’s address, Plaintiff must specify that the address is filed under seal in Case 23 No. 2:22-cv-01412-APG-DJA at ECF No. 35. 24 B. The Court grants Plaintiff’s motion for appointment of counsel (ECF No. 63) and denies Plaintiff’s emergency motion (ECF No. 116) as moot. 25 26 Plaintiff moves for the Court to appoint counsel, asserting that her case is factually 27 complex, that she lacks the ability to prosecute it because she is in administrative segregation, and 1 motion. Plaintiff filed an affidavit in support of her motion. (ECF No. 82). Plaintiff also filed an 2 emergency motion for the Court to review her motion for appointment of counsel, explaining that 3 she has gone to the emergency room several times, is experiencing medical problems, and is 4 waiting on medical procedures that will impact her ability to prosecute this case. (ECF No. 116). 5 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 6 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Under 28 U.S.C. 7 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford 8 counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional 9 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When 10 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 11 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 12 of the complexity of the legal issues involved.’” Id. “Neither of these considerations is 13 dispositive and instead must be viewed together.” Id. 14 The Court grants Plaintiff’s motion to appoint counsel. The Court finds Plaintiff’s 15 situation to constitute exceptional circumstances. Plaintiff has explained that, because she is in 16 administrative segregation, she lacks the research capabilities other inmates have and cannot 17 interview other inmates who are witnesses. She adds that she cannot readily access her medical 18 records, which are central to this case, and her records total over 3,000 pages. Plaintiff’s case will 19 also likely require expert testimony because her medical treatment is at issue, and she asserts that 20 her records are inaccurate reflections of her treatment. The Court thus finds that Plaintiff lacks 21 the ability to articulate her claims pro se in light of the legal complexities involved. This is 22 especially true considering Plaintiff’s recent emergency motion explaining that upcoming medical 23 procedures will impede her ability to engage in this case. Additionally, Plaintiff has 24 demonstrated likelihood of success on the merits sufficient for the Court to grant her motion. 25 Specifically, the Court has partially granted Plaintiff’s motions for injunctive relief, which 26 analysis requires a finding of likelihood of success on the merits. (ECF No. 88). Because the 27 Court grants Plaintiff’s motion to appoint counsel, it denies her emergency motion for review of C. The Court grants Plaintiff’s motion to reinstate her motion to extend (ECF No. 1 103). 2 3 Plaintiff moves to reinstate her previously filed motion to extend time filed at ECF No. 95. 4 (ECF No. 103). Plaintiff asserts that the Court misconstrued her motion to withdraw filed at ECF 5 No. 96 to withdraw ECF No. 95. (ECF No. 103). No party has responded to Plaintiff’s motion to 6 reinstate. Because the Court finds that Plaintiff did not intend to withdraw her motion to extend 7 time filed at ECF No. 95, it grants Plaintiff’s motion to reinstate (ECF No. 103) and will consider 8 the merits of her motion to extend time (ECF No. 95). 9 In her motion to extend time, filed on August 10, 2023, Plaintiff explains that she has not 10 received Defendants’ responses to her discovery requests. (ECF No. 95). Plaintiff thus seeks to 11 extend all discovery deadlines to sixty days after she receives Defendants’ responses to discovery.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 S. Seanah Dixon, Case No. 2:22-cv-01412-APG-DJA 6 Plaintiff, 7 Order v. 8 Stacy Barrett, et al., 9 Defendants. 10 11 12 This is a civil rights action arising out of events that took place while Plaintiff was 13 incarcerated at Ely State Prison and High Desert State Prison. Plaintiff sues Defendants for 14 damages, declaratory relief, and injunctive relief, alleging claims for deliberate indifference to 15 serious medical needs and retaliation. Plaintiff now moves for a court order requiring the U.S. 16 Marshals Service to serve Defendants Sandra Gobler and Steven Salkoff (ECF No. 62), for 17 appointment of counsel (ECF No. 63), to reinstate her motion to extend time (ECF No. 103), and 18 for the Court to review her motion for appointment of counsel on an emergency basis (ECF No. 19 116). 20 Because the Court finds that Plaintiff has demonstrated good cause for another 21 opportunity to serve Gobler and Salkoff, it grants Plaintiff’s motion for an order regarding 22 service. (ECF No. 62). Because the Court finds that Plaintiff has demonstrated that she did not 23 intend to withdraw her previous motion to extend time, the Court will grant her motion to 24 reinstate that motion and consider the merits of the motion to extend time. (ECF No. 103). 25 Because the Court finds that Plaintiff has demonstrated exceptional circumstances, the Court 26 grants her motion for appointment of counsel. (ECF No. 63). Because the Court grants the 27 motion for appointment of counsel, it denies Plaintiff’s emergency motion regarding the motion 1 I. Discussion. 2 A. The Court grants Plaintiff’s motion for a Court order regarding service (ECF No. 62). 3 4 Plaintiff moves for the Court to order the U.S. Marshals Service to attempt service on 5 Defendants Gobler and Salkoff. Plaintiff explains that the Attorney General filed Gobler and 6 Salkoff’s last known addresses under seal and that Plaintiff then submitted two USM 285 forms 7 indicating that those addresses were under seal. (ECF No. 62 at 5, 7). However, Plaintiff 8 received notice that the U.S. Marshals Service could not serve the process because Plaintiff did 9 not provide addresses. (Id. 11). No party filed a response. 10 The Court grants Plaintiff’s motion and will grant her an extension to serve Gobler and 11 Salkoff. Plaintiff may rely on the U.S. Marshals Service for service under Federal Rule of Civil 12 Procedure 4(c)(3). Additionally, under Federal Rule of Civil Procedure 4(m), if a plaintiff shows 13 good cause for failure to serve a defendant within ninety days of the complaint being filed, the 14 Court must extend the time for service for an appropriate period. 15 In its prior order granting Plaintiff’s motion for service on Gobler and Salkoff, the Court 16 gave Plaintiff until July 3, 2023, to serve Defendants. Plaintiff filed the instant, renewed motion 17 for service on June 6, 2023. The Court notes that, on Plaintiff’s USM 285 forms, Plaintiff wrote 18 that each address was “filed under seal with court,” but Plaintiff did not specify where the U.S. 19 Marshals Service could find Gobler and Salkoff’s addresses under seal. The Court will thus give 20 Plaintiff one more opportunity to attempt service on these Defendants. Plaintiff must fill out new 21 USM-285 forms and send them directly to the U.S. Marshals Service. In the blank space asking 22 for each Defendant’s address, Plaintiff must specify that the address is filed under seal in Case 23 No. 2:22-cv-01412-APG-DJA at ECF No. 35. 24 B. The Court grants Plaintiff’s motion for appointment of counsel (ECF No. 63) and denies Plaintiff’s emergency motion (ECF No. 116) as moot. 25 26 Plaintiff moves for the Court to appoint counsel, asserting that her case is factually 27 complex, that she lacks the ability to prosecute it because she is in administrative segregation, and 1 motion. Plaintiff filed an affidavit in support of her motion. (ECF No. 82). Plaintiff also filed an 2 emergency motion for the Court to review her motion for appointment of counsel, explaining that 3 she has gone to the emergency room several times, is experiencing medical problems, and is 4 waiting on medical procedures that will impact her ability to prosecute this case. (ECF No. 116). 5 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 6 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Under 28 U.S.C. 7 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford 8 counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional 9 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When 10 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 11 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 12 of the complexity of the legal issues involved.’” Id. “Neither of these considerations is 13 dispositive and instead must be viewed together.” Id. 14 The Court grants Plaintiff’s motion to appoint counsel. The Court finds Plaintiff’s 15 situation to constitute exceptional circumstances. Plaintiff has explained that, because she is in 16 administrative segregation, she lacks the research capabilities other inmates have and cannot 17 interview other inmates who are witnesses. She adds that she cannot readily access her medical 18 records, which are central to this case, and her records total over 3,000 pages. Plaintiff’s case will 19 also likely require expert testimony because her medical treatment is at issue, and she asserts that 20 her records are inaccurate reflections of her treatment. The Court thus finds that Plaintiff lacks 21 the ability to articulate her claims pro se in light of the legal complexities involved. This is 22 especially true considering Plaintiff’s recent emergency motion explaining that upcoming medical 23 procedures will impede her ability to engage in this case. Additionally, Plaintiff has 24 demonstrated likelihood of success on the merits sufficient for the Court to grant her motion. 25 Specifically, the Court has partially granted Plaintiff’s motions for injunctive relief, which 26 analysis requires a finding of likelihood of success on the merits. (ECF No. 88). Because the 27 Court grants Plaintiff’s motion to appoint counsel, it denies her emergency motion for review of C. The Court grants Plaintiff’s motion to reinstate her motion to extend (ECF No. 1 103). 2 3 Plaintiff moves to reinstate her previously filed motion to extend time filed at ECF No. 95. 4 (ECF No. 103). Plaintiff asserts that the Court misconstrued her motion to withdraw filed at ECF 5 No. 96 to withdraw ECF No. 95. (ECF No. 103). No party has responded to Plaintiff’s motion to 6 reinstate. Because the Court finds that Plaintiff did not intend to withdraw her motion to extend 7 time filed at ECF No. 95, it grants Plaintiff’s motion to reinstate (ECF No. 103) and will consider 8 the merits of her motion to extend time (ECF No. 95). 9 In her motion to extend time, filed on August 10, 2023, Plaintiff explains that she has not 10 received Defendants’ responses to her discovery requests. (ECF No. 95). Plaintiff thus seeks to 11 extend all discovery deadlines to sixty days after she receives Defendants’ responses to discovery. 12 The Court granted Plaintiff’s previous motion to extend time on May 18, 2023, and set the 13 following deadlines (ECF No. 57): 14 Amend pleadings/add parties: August 28, 2023 15 Discovery cutoff: September 27, 2023 16 Discovery motions: October 11, 2023 17 Dispositive motions: October 30, 2023 18 Joint pretrial order: November 29, 2023 19 The Court notes that no party has responded to Plaintiff’s motion to reinstate, constituting 20 their consent to the Court granting it under Local Rule 7-2(d). Additionally, Plaintiff has shown 21 good cause for the extension, explaining that she has not yet received discovery necessary to 22 prosecute her case. The Court has also granted Plaintiff’s motion for appointment of counsel and 23 any appointed counsel will need time to conduct discovery. Plaintiff has also filed a motion to 24 compel discovery. (ECF No. 115). The Court thus grants Plaintiff’s motion to reinstate and will 25 extend all deadlines1 for sixty days from the date of this order. To the extent the parties require 26 more time, they may file a stipulation or motion to extend these deadlines. 27 1 Plaintiff’s motion to extend time seeks to extend “all discovery deadlines.” (ECF No. 95 at 2). 1 IT IS THEREFORE ORDERED that Plaintiff’s motion for a Court order regarding 2 service by the U.S. Marshals Service (ECF No. 62) is granted. 3 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to deliver the 4 following to the U.S. Marshals Service: (1) the summonses issued to Sandra Gobler and Steven 5 Salkoff (ECF No. 58); (2) two copies of the complaint (ECF No. 5); and (3) a copy of this order. 6 IT IS FURTHER ORDERED that the Clerk of Court is also kindly directed to mail 7 Plaintiff two copies of the Form USM-285. 8 IT IS FURTHER ORDERED that Plaintiff shall have until October 19, 2023 to send 9 the U.S. Marshals Service the required USM-285 forms. Within twenty-one days after receiving 10 a copy of the USM-285 forms back from the U.S. Marshals Service showing whether service has 11 been accomplished, Plaintiff must file a notice with the Court identifying whether the defendant 12 was served. If Plaintiff wishes to have service again attempted on an unserved defendant, the 13 Plaintiff must file a motion with the Court identifying the unserved defendant and specifying a 14 more detailed name and/or address for said defendant or whether some other manner of service 15 should be attempted. 16 IT IS FURTHER ORDERED that Plaintiff shall have forty-five additional days from the 17 date of this order—until November 13, 2023—within which to serve Defendants. 18 IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (ECF 19 No. 63) is granted. 20 IT IS FURTHER ORDERED that this case shall be referred to the Pro Bono Program 21 adopted in Second Amended General Order 2019-07 for the purpose of screening for financial 22 eligibility (if necessary) and identifying counsel willing to be appointed as pro bono counsel for 23 Plaintiff. Plaintiff is reminded that she must comply with all deadlines currently set in her case 24 and there is no guarantee that counsel will be appointed. If counsel is found, an order appointing 25 counsel will be issued by the Court, and Plaintiff will be contacted by counsel. 26
27 expired, the Court construes Plaintiff’s motion as seeking to extend all deadlines, including the 1 IT IS FURTHER ORDERED that Plaintiff’s emergency motion for review (ECF No. 2 116) is denied as moot. 3 IT IS FURTHER ORDERED that Plaintiff’s motion to reinstate (ECF No. 103) is 4 granted. 5 IT IS FURTHER ORDERED that the following deadlines shall govern discovery: 6 Amend pleadings/add parties: October 27, 2023 7 Discovery cutoff: November 27, 2023 8 Discovery motions: December 11, 2023 9 Dispositive motions: December 29, 2023 10 Joint pretrial order: January 29, 2024 11 12 13 DATED: September 28, 2023 14 DANIEL J. ALBREGTS 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27