Garcia v. Davis

Opinion

3 PEDRO GARCIA, Case No. 3:20-cv-0071-MMD-CLB 4 Plaintiff, ORDER 5 v.

6 C/O DAVIS, et al.,

7 Defendants.

9 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 10 1983 by a state prisoner. Plaintiff has submitted an application to proceed in forma 11 pauperis. ECF No. 1. Based on the financial information provided, the Court finds that 12 Plaintiff is unable to prepay the full filing fee in this matter. 13 The Court entered a screening order on February 2, 2021. ECF No. 14. The 14 screening order imposed a 90-day stay and the Court entered a subsequent order in 15 which the parties were assigned to mediation by a court-appointed mediator. ECF Nos. 16 14, 25, 26. The Office of the Attorney General has filed a status report indicating that 17 settlement has not been reached and informing the Court of its intent to proceed with 18 this action. ECF No. 31. 19 Motion for Appointment of Counsel 20 While this matter was stayed, Plaintiff filed a motion for appointment of counsel. 21 ECF No. 23. A litigant does not have a constitutional right to appointed counsel in 42 22 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 23 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to 24 represent any person unable to afford counsel.” However, the court will appoint counsel 25 for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 26 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional 27 circumstances’ exist, a court must consider ‘the likelihood of success on the merits as 28 1 well as the ability of the petitioner to articulate his claims pro se in light of the complexity 2 of the legal issues involved.” Id. “Neither of these considerations is dispositive and 3 instead must be viewed together.” Id. In the instant case, the Court does not find 4 exceptional circumstances that warrant the appointment of counsel. The Court denies 5 the motion for appointment of counsel without prejudice. 6 For the foregoing reasons, THE COURT ORDERS that: 7 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is 8 GRANTED. Plaintiff is permitted to maintain this action to conclusion without the 9 necessity of prepayment of the filing fee in full or part, or prepayment of any additional 10 fees or costs, or the giving of security therefor. 11 2. This order granting leave to proceed in forma pauperis shall not extend to 12 the issuance and/or service of subpoenas at government expense. 13 3. While Plaintiff is not required to pre-pay the filing fee in full or part, the full 14 filing fee must still be paid by Plaintiff pursuant to 28 U.S.C. § 1915(b)(2). Accordingly, 15 Plaintiff is required to make monthly payments of 20% of the preceding month’s income 16 credited to his account. The Nevada Department of Corrections shall determine and 17 forward this monthly payment from the account of Plaintiff Pedro Garcia, #81578, to the 18 Clerk of the United States District Court, District of Nevada, in each month that the 19 account balance exceeds $10.00 until the full $350.00 filing fee has been paid for this 20 action. The Clerk of the Court shall SEND a copy of this order to the Finance Division 21 of the Clerk’s Office. The Clerk of the Court shall also SEND a copy of this order to the 22 attention of the Chief of Inmate Services for the Nevada Department of Corrections, 23 P.O. Box 7011, Carson City, NV 89702. 24 4. The Clerk of the Court shall electronically SERVE a copy of this order and 25 a copy of Plaintiff’s complaint (ECF No. 15) on the Office of the Attorney General of the 26 State of Nevada by adding the Attorney General of the State of Nevada to the docket 27 sheet. This does not indicate acceptance of service. 28 1 5. Service must be perfected within 90 days from the date of this order 2 pursuant to Fed. R. Civ. P. 4(m). 3 6. Subject to the findings of the screening order (ECF No. 14), within 21 days 4 of the date of entry of this order, the Attorney General’s Office shall file a notice advising 5 the Court and Plaintiff of: (a) the names of the defendants for whom it accepts service; 6 (b) the names of the defendants for whom it does not accept service, and (c) the names 7 of the defendants for whom it is filing the last-known-address information under seal. 8 As to any of the named defendants for whom the Attorney General’s Office cannot 9 accept service, the Office shall file under seal, but shall not serve the inmate Plaintiff, 10 the last known addresses of those defendants for whom it has such information. If the 11 last known address of a defendant is a post office box, the Attorney General's Office 12 shall attempt to obtain and provide the last known physical address. 13 7. If service cannot be accepted for any named defendant, Plaintiff shall file a 14 motion identifying the unserved defendant, requesting issuance of a summons, and 15 specifying a full name and address for the defendant. For each defendant as to which 16 the Attorney General has not provided the defendant’s last-known-address, Plaintiff 17 shall provide the full name and address for the defendant. 18 8. If the Attorney General accepts service of process for a named defendant, 19 each such defendant shall file and serve an answer or other response to the complaint 20 (ECF No. 15) within sixty (60) days from the date of this order. 21 9. Plaintiff shall serve upon defendants or, if an appearance has been 22 entered by counsel, upon their attorneys, a copy of every pleading, motion or other 23 document submitted for consideration by the Court. If Plaintiff electronically files a 24 document with the Court’s electronic-filing system, no certificate of service is required. 25 Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff 26 mails the document to the Court, Plaintiff shall include with the original document 27 submitted for filing a certificate stating the date that a true and correct copy of the 28 document was mailed to the defendants or counsel for the defendants. If counsel has 4|| entered a notice of appearance, Plaintiff shall direct service to the individual attorney 2\|| named in the notice of appearance, at the physical or electronic address stated therein. 3]! The Court may disregard any document received by a district judge or magistrate judge 4|| which has not been filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing proper service □□ when required. 7 10. This case is no longer stayed. 8 11. Plaintiff's Motion for Appointment of Counsel (ECF No. 23) is DENIED g|| without prejudice. 10 DATED THIS 17¢@ay of May 2021. . 12 13 UNITED sri JUDGE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28