Attorney General 2 ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General 3 State of Nevada Office of the Attorney General 4 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 5 (702) 486-0661 (phone) (702) 486-3773 (fax) 6 Email: ajsmith@ag.nv.gov
7 Attorneys for Benjamin Murphy and Martin Naughton 8
10 UNITED STATES DISTRICT COURT
11 DISTRICT OF NEVADA
12 WILLIAM E. HARRIS, Case No. 3:20-cv-00557-MMD-WGC
13 Plaintiff, MOTION TO EXTEND BY FOURTEEN DAYS THE TIME TO 14 v. RESPOND TO PLAINTIFF’S MOTION FOR APPOINTMENT OF 15 H. WICKHAM, et al., COUNSEL (ECF NO. 3)
16 Defendants. (FIRST REQUEST) 17 Defendants, Benjamin Murphy and Martin Naughton, by and through counsel, 18 Aaron D. Ford, Nevada Attorney General, Alexander J. Smith, Deputy Attorney General, 19 of the State of Nevada, Office of the Attorney General, hereby move to extend by fourteen 20 days the time to respond to respond to Plaintiff William E. Harris’s motion for appointment 21 of counsel (ECF No. 3).1 22 Harris sues (ECF No. 5) under the Eighth Amendment and moves (ECF No. 3) for 23 the appointment of counsel. In support of his motion Harris states that he is legally blind 24 and cannot investigate, gather medical records, research, read, or write. (ECF No. 3 at 4-5) 25 A May 26, 2021 screening order (ECF No. 4) directs the Defendants to respond to Harris’s 26 motion within twenty-one days, and the response must “include[e] the relevant medical 27 records (which may be filed under seal), and, if appropriate, a declaration by a person 28 1 Which gives a new deadline of June 30, 2021. 2 condition.” (ECF No. 4 at 11) 3 For the reasons below, namely that Defendants are in the process of trawling 4 through a voluminous collection of medical records and obtaining medical declarations and 5 other pertinent information that will assist the court in adjudicating Harris’s motion, 6 Defendants move for an extension of fourteen days to respond to Harris’s motion for 7 appointment of counsel.2 8 I. LAW AND ARGUMENT 9 A. Rule 6(b), Federal Rules Of Civil Procedure 10 Rule 6(b)(1), Federal Rules of Civil Procedure, governs extensions of time:
11 When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without 12 motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made 13 after the time has expired if the party failed to act because of excusable neglect. 14 15 Under Rule 6, good cause is not a rigorous or high standard, and courts have 16 construed the test broadly. Ahanchion v. Kenan Pictures, 624 F.3d 1253 (9th Cir. 2010). 17 Rule 6(b) “[is] to be liberally construed to effectuate the general purpose of seeing that cases 18 are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983); Wong v. Regents 19 of the Univ. of Calif., 410 F.3d 1052, 1060 (9th Cir. 2005) (“Of course, courts should not 20 mindlessly enforce deadlines.”). 21 /// 22 /// 23
2 Also, Defendants inform the court that they have complied with the court’s order 24 to “ensure that someone reads to Harris [the screening order][.]” (ECF No. 11 at 11) On June 8, 2021, counsel for the defendants received from Jasmine Barraza, Correctional 25 Casework Specialist (CCS) in Unit One at Northern Nevada Correctional Center, an email stating that she met with Harris that same day for approximately twenty-five minutes. 26 CCS Barraza read the screening order to Harris and provided him with a copy of the document. Harris was asked whether he had any questions and enquired about “any ADA 27 opportunities,” which, according to CCS Barraza, meant that he wanted to know about obtaining a job position or receiving meritorious days. Harris stated to CCS Barraza that 28 he is “not completely blind” and “can see light, shadows, figures and stuff.” 2 LR IA 6-1 requires that a motion to extend time must state the reasons for the 3 extension requested and will not be granted if requested after the expiration of the specified 4 period unless the movant demonstrates that the failure to file the motion before the 5 deadline expired resulted because of excusable neglect. LR 26-3 requires that a motion to 6 extend any date set by the discovery plan, scheduling order, or other order must, as well as 7 satisfying the requirements of LR IA 6-1, demonstrate good cause for the extension.
8 C. Good Cause Exists, Thus The Court Should Grant Defendants’ Motion For An Extension Of The Response Deadline 9 10 Defendants are currently in the process of evaluating a full set of Harris’s medical 11 reports and other pertinent information to assess the extent and severity of any medical 12 condition and disability that Harris might have. Such information will enable the court to 13 arrive at a reasoned and well-informed decision whether Harris’s motion for appointment 14 of counsel warrants granting. To date, counsel for the defense has received information 15 from John Keast BSN, RN, Director of Nursing Services 2, NDOC Regional Medical 16 Facility, who has informed counsel for the defense that Harris’s medical file states that 17 Harris has bilateral blindness. Also, Defendants have recently received more than thirty 18 separate files, each of which contain relevant medical records; some of these are written in 19 handwriting that is difficult to understand. 20 Defendants need further time to extract and interpret relevant information and have 21 an appropriately qualified doctor familiar with Harris and his condition review those 22 records and provide a declaration. In responding to Harris’s motion for appointment of 23 counsel, Defendants will contend that on its own, vision-impairment does not necessarily 24 warrant the appointment of counsel—the relevant legal test considers several factors.3 25
3 A court will appoint counsel for an indigent civil litigant only if rare exceptional 26 circumstances exist. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335–1336 (9th Cir. 1990). A finding of exceptional 27 circumstances requires an evaluation of both the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved and the likelihood of 28 success on the merits. Terrell, 935 F.2d at 1017. 1 Second, counsel for the defense has arranged a meet-and-confer with Harris to help 2 assess whether NDOC can provide Harris with any reasonable accommodations—short of 3 || his having legal counsel—for the purpose of his prosecuting this action and thus helping 4 ||secure his right of access to the courts. The meeting is scheduled for today, June 16th; 5 ||counsel for the defense intends to enquire whether there are accommodations that NDOC 6 ||can provide to assist Harris considering his alleged disability. 7 CONCLUSION 8 For the reasons stated above, good cause exists to grant Defendants’ motion for an 9 extension of fourteen days to fully review Harris’s extensive medical notes and have a 10 || suitably qualified nurse or physician provide a declaration on his medical condition.
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Attorney General 2 ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General 3 State of Nevada Office of the Attorney General 4 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 5 (702) 486-0661 (phone) (702) 486-3773 (fax) 6 Email: ajsmith@ag.nv.gov
7 Attorneys for Benjamin Murphy and Martin Naughton 8
10 UNITED STATES DISTRICT COURT
11 DISTRICT OF NEVADA
12 WILLIAM E. HARRIS, Case No. 3:20-cv-00557-MMD-WGC
13 Plaintiff, MOTION TO EXTEND BY FOURTEEN DAYS THE TIME TO 14 v. RESPOND TO PLAINTIFF’S MOTION FOR APPOINTMENT OF 15 H. WICKHAM, et al., COUNSEL (ECF NO. 3)
16 Defendants. (FIRST REQUEST) 17 Defendants, Benjamin Murphy and Martin Naughton, by and through counsel, 18 Aaron D. Ford, Nevada Attorney General, Alexander J. Smith, Deputy Attorney General, 19 of the State of Nevada, Office of the Attorney General, hereby move to extend by fourteen 20 days the time to respond to respond to Plaintiff William E. Harris’s motion for appointment 21 of counsel (ECF No. 3).1 22 Harris sues (ECF No. 5) under the Eighth Amendment and moves (ECF No. 3) for 23 the appointment of counsel. In support of his motion Harris states that he is legally blind 24 and cannot investigate, gather medical records, research, read, or write. (ECF No. 3 at 4-5) 25 A May 26, 2021 screening order (ECF No. 4) directs the Defendants to respond to Harris’s 26 motion within twenty-one days, and the response must “include[e] the relevant medical 27 records (which may be filed under seal), and, if appropriate, a declaration by a person 28 1 Which gives a new deadline of June 30, 2021. 2 condition.” (ECF No. 4 at 11) 3 For the reasons below, namely that Defendants are in the process of trawling 4 through a voluminous collection of medical records and obtaining medical declarations and 5 other pertinent information that will assist the court in adjudicating Harris’s motion, 6 Defendants move for an extension of fourteen days to respond to Harris’s motion for 7 appointment of counsel.2 8 I. LAW AND ARGUMENT 9 A. Rule 6(b), Federal Rules Of Civil Procedure 10 Rule 6(b)(1), Federal Rules of Civil Procedure, governs extensions of time:
11 When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without 12 motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made 13 after the time has expired if the party failed to act because of excusable neglect. 14 15 Under Rule 6, good cause is not a rigorous or high standard, and courts have 16 construed the test broadly. Ahanchion v. Kenan Pictures, 624 F.3d 1253 (9th Cir. 2010). 17 Rule 6(b) “[is] to be liberally construed to effectuate the general purpose of seeing that cases 18 are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983); Wong v. Regents 19 of the Univ. of Calif., 410 F.3d 1052, 1060 (9th Cir. 2005) (“Of course, courts should not 20 mindlessly enforce deadlines.”). 21 /// 22 /// 23
2 Also, Defendants inform the court that they have complied with the court’s order 24 to “ensure that someone reads to Harris [the screening order][.]” (ECF No. 11 at 11) On June 8, 2021, counsel for the defendants received from Jasmine Barraza, Correctional 25 Casework Specialist (CCS) in Unit One at Northern Nevada Correctional Center, an email stating that she met with Harris that same day for approximately twenty-five minutes. 26 CCS Barraza read the screening order to Harris and provided him with a copy of the document. Harris was asked whether he had any questions and enquired about “any ADA 27 opportunities,” which, according to CCS Barraza, meant that he wanted to know about obtaining a job position or receiving meritorious days. Harris stated to CCS Barraza that 28 he is “not completely blind” and “can see light, shadows, figures and stuff.” 2 LR IA 6-1 requires that a motion to extend time must state the reasons for the 3 extension requested and will not be granted if requested after the expiration of the specified 4 period unless the movant demonstrates that the failure to file the motion before the 5 deadline expired resulted because of excusable neglect. LR 26-3 requires that a motion to 6 extend any date set by the discovery plan, scheduling order, or other order must, as well as 7 satisfying the requirements of LR IA 6-1, demonstrate good cause for the extension.
8 C. Good Cause Exists, Thus The Court Should Grant Defendants’ Motion For An Extension Of The Response Deadline 9 10 Defendants are currently in the process of evaluating a full set of Harris’s medical 11 reports and other pertinent information to assess the extent and severity of any medical 12 condition and disability that Harris might have. Such information will enable the court to 13 arrive at a reasoned and well-informed decision whether Harris’s motion for appointment 14 of counsel warrants granting. To date, counsel for the defense has received information 15 from John Keast BSN, RN, Director of Nursing Services 2, NDOC Regional Medical 16 Facility, who has informed counsel for the defense that Harris’s medical file states that 17 Harris has bilateral blindness. Also, Defendants have recently received more than thirty 18 separate files, each of which contain relevant medical records; some of these are written in 19 handwriting that is difficult to understand. 20 Defendants need further time to extract and interpret relevant information and have 21 an appropriately qualified doctor familiar with Harris and his condition review those 22 records and provide a declaration. In responding to Harris’s motion for appointment of 23 counsel, Defendants will contend that on its own, vision-impairment does not necessarily 24 warrant the appointment of counsel—the relevant legal test considers several factors.3 25
3 A court will appoint counsel for an indigent civil litigant only if rare exceptional 26 circumstances exist. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335–1336 (9th Cir. 1990). A finding of exceptional 27 circumstances requires an evaluation of both the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved and the likelihood of 28 success on the merits. Terrell, 935 F.2d at 1017. 1 Second, counsel for the defense has arranged a meet-and-confer with Harris to help 2 assess whether NDOC can provide Harris with any reasonable accommodations—short of 3 || his having legal counsel—for the purpose of his prosecuting this action and thus helping 4 ||secure his right of access to the courts. The meeting is scheduled for today, June 16th; 5 ||counsel for the defense intends to enquire whether there are accommodations that NDOC 6 ||can provide to assist Harris considering his alleged disability. 7 CONCLUSION 8 For the reasons stated above, good cause exists to grant Defendants’ motion for an 9 extension of fourteen days to fully review Harris’s extensive medical notes and have a 10 || suitably qualified nurse or physician provide a declaration on his medical condition. This 11 || will enable the court to assess the extent to which Harris’s condition impedes his ability to 12 || prosecute his action and access the court, both important factors that the court will consider 13 deciding whether to grant Harris’s motion for appointment of counsel. 14 In their opposition to Harris’s motion, Defendants will update the court as to 15 || whether they can provide Harris with reasonable accommodations; such accommodations 16 relevant when deciding whether exceptional circumstances exist that warrant the 17 || appointment of counsel. 18 DATED this 16th day of June, 2021. 19 AARON D. FORD 20 Attorney General /s/ Alexander J. Smith 21 ALEXANDER J. SMITH (Bar No. 15484C) 29 Deputy Attorney General
23 Attorneys for Defendants 24 IT IS SO ORDERED. 25 (Nadie oF] Cott 26 UNITED STATES MAGISTRATE JUDGE DATED: June 17, 2021 28
2 I certify that I am an employee of the State of Nevada, Office of the Attorney General, 3 and that on June 16, 2021, I electronically filed the foregoing MOTION TO EXTEND BY 4 FOURTEEN DAYS THE TIME TO RESPOND TO PLAINTIFF’S MOTION FOR 5 APPOINTMENT OF COUNSEL (ECF NO. 3) (FIRST REQUEST) via this Court’s 6 electronic filing system. Parties who are registered with this Court’s electronic filing 7 system will be served electronically.
8 William Harris, #84785 Northern Nevada Correctional Center 9 P.O. Box 7000 Carson City, Nevada 89701 10 Email: nncclawlibrary@doc.nv.gov Plaintiff, Pro Se 11
12 /s/ Carol A. Knight 13 CAROL A. KNIGHT, an employee of the Office of the Nevada Attorney General 14
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