Johnson v. Willis

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 LAUSTEVEION JOHNSON, Case No. 2:17-cv-01121-APG-EJY

5 Plaintiff, ORDER 6 v.

7 DAVID WILLIS, et al.,

8 Defendants.

9 10 Pending before the Court is Lausteveion Johnson’s Motion for Appointment of Counsel or, 11 in the alternative, Motion for Advisory Counsel. ECF No. 141. The jury trial is set in this matter 12 for October 31, 2022, at 9:00 a.m. The calendar call is set for October 25, 2022, at 9:00 a.m. Plaintiff 13 states that multiple claims are proceeding to trial and while he has some ability to prosecute his case 14 pretrial, he is ill equipped to take this matter to trial without, at minimum, advisory counsel to assist 15 him with jury instructions, voir dire, and other pretrial proceedings. Defendants contend Plaintiff 16 has not demonstrated the extraordinary circumstances necessary to warrant appointment of counsel. 17 ECF No. 143. 18 There is no dispute that Plaintiff survived summary judgment and is proceeding to trial on 19 two claims—a claim of retaliation against Defendant Rashonda Smith, and a claim of retaliation 20 against Defendant Douglas Thrasher. These Defendants are represented by the Nevada Attorney 21 General’s Office. 22 As a general matter, there is no constitutional right to counsel for civil litigants. Storseth v. 23 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Ninth Circuit holds that counsel may 24 be appointed to indigent defendants in “exceptional circumstances.” Palmer v. Valdez, F.3d 965, 25 970 (9th Cir. 2009). In considering whether exceptional circumstances exist, courts consider “the 26 likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro 27 se in light of the complexity of the legal issues involved.” Id. at 970. “Neither of these 1 || case does not generally qualify as an exceptional circumstance. Wood v. Housewright, 900 F.: 2 || 1332, 1335-36 (9th Cir. 1990). 3 Here, Plaintiff admits he can articulate his claims, but it is also true that he has virtually 1 4 || ability to conduct voir dire or prepare jury instructions. Plaintiff does not merely have limited abili 5 || to handle either of these tasks; rather, he is quite possibly unable to handle these matters with a1 6 || success absent guidance from counsel. Thus, the Court finds appointing counsel for □□□□□□□□ 7 || assisting Plaintiff with preparing and conducting voir dire of the jury, preparing jury instruction, at 8 || assisting Plaintiff in understanding the rules and processes pertaining to the examination and cro 9 || examination of witnesses is appropriate and will assure a more efficient trial for the Court and 1 10 || participants. 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Appointment 12 |} Counsel or, in the alternative, Motion for Advisory Counsel (ECF No. 141) is GRANTED to tl 13 |} extent that this matter is referred to the pro bono program for appointment of counsel to ass: 14 || Plaintiff in preparing and conducting voir dire, preparing jury instruction, and understanding tl 15 || rules and processes relating to the examination and cross examination of witnesses. 16 17 Dated this 7th day of September, 2022. 18 19 . ELAYNAV. YOU: 20 FLAN, «sce RATE JUDGE 21 22 23 24 25 26 27 28