1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 STEVEN KINFORD, Case No. 2:18-cv-01890-RFB-EJY 4 Plaintiff, 5 v. ORDER
6 SHANNON MOYAL, et al.,
7 Defendants.
8 9 I. DISCUSSION 10 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 11 by a state prisoner. Plaintiff has submitted an application to proceed in forma pauperis. (ECF No. 12 1). Based on the financial information provided, the Court finds that Plaintiff is unable to prepay 13 the full filing fee in this matter. 14 The Court entered a screening order on Plaintiff’s third amended complaint on December 15 12, 2019. (ECF No. 15). The screening order imposed a stay and the Court entered a subsequent 16 order in which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 17 15, 62). The Office of the Attorney General has filed a status report indicating that settlement was 18 not reached and informing the Court of its intent to proceed with this action. (ECF No. 64). As 19 such, the Court lifts the stay in this case. During the stay, Plaintiff filed numerous motions. The 20 Court addresses these motions below. 21 A. ECF No. 25 22 On April 1, 2020, Plaintiff filed a motion for appointment of counsel. (ECF No. 25). A 23 litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights 24 claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. 25 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford 26 counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional 27 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When 28 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 1 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 2 of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive 3 and instead must be viewed together.” Id. In the instant case, the Court does not find exceptional 4 circumstances that warrant the appointment of counsel. The Court denies Plaintiff’s Motion for 5 Appointment of Counsel without prejudice. 6 B. ECF No. 26 7 On April 6, 2020, Plaintiff filed a motion requesting that $60 be transferred from his 8 savings in his prison account to his “dept two account,” so that Plaintiff can use the funds to make 9 photocopies for his civil rights lawsuits. (ECF No. 26 at 1). The Office of the Attorney General 10 filed a response to Plaintiff’s motion, arguing that the Nevada Department of Corrections has a 11 specific procedure in place for inmates to request a withdrawal from their savings account. (ECF 12 No. 35 at 2). The Office of the Attorney General argues that Plaintiff’s motion should be denied 13 because it does not allege that Plaintiff went through this process and made a formal request or 14 that any such request was denied. (Id.) 15 In his reply, Plaintiff states that he did not initially put in an official request because he was 16 told it was doubtful that the request would be granted. (ECF No. 37 at 2). However, as of the date 17 of Plaintiff’s reply, he had made an official request, but he had not yet received a response. (Id.). 18 As Plaintiff’s official request for a transfer of funds was still pending at that time, the Court denies 19 Plaintiff’s motion without prejudice. 20 C. ECF Nos. 40, 54, 57, 58, 59, 61 21 Plaintiff filed numerous motions requesting that the Court order the Office of the Attorney 22 General to engage in settlement discussions, requesting a status update on the date of the mediation 23 conference, or requesting that a mediation conference be set. (ECF Nos. 40, 54, 57, 58, 59, 61). 24 The parties participated in the mediation conference on September 11, 2020. As such, the Court 25 dismisses these motions as moot. 26 D. ECF Nos 51, 52 27 On April 9, 2020, Plaintiff filed a motion for a temporary restraining order and a motion 28 for a preliminary injunction. (ECF Nos. 27, 28). On May 20, 2020, the Office of the Attorney 1 General responded to the motions, and on May 22, 2020, the Court denied Plaintiff’s motions. 2 (ECF No. 50.) On May 28, 2020, Plaintiff filed two identical motions requesting an extension to 3 reply to the filings from the Office of the Attorney General. (ECF Nos. 51, 52). As the Court has 4 already denied Plaintiff’s motion for a preliminary injunction and a temporary restraining order, 5 the Court denies Plaintiff’s motions for an extension of time as moot. 6 II. CONCLUSIONS 7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. 9 Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that this 10 action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2). 11 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 12 prepayment of any additional fees or costs or the giving of security therefor. This order granting 13 leave to proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 14 government expense. 15 3. Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall 16 pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding 17 month’s deposits to Plaintiff’s account (Steven Kinford, #64984), in the months that the account 18 exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk of the 19 Court shall SEND a copy of this order to the Finance Division of the Clerk’s Office. The Clerk 20 of the Court shall also SEND a copy of this order to the attention of the Chief of Inmate Services 21 for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 22 4. The Clerk of the Court shall electronically SERVE a copy of this order and a copy 23 of Plaintiff’s third amended complaint (ECF No. 16) on the Office of the Attorney General of the 24 State of Nevada by adding the Attorney General of the State of Nevada to the docket sheet. This 25 does not indicate acceptance of service. 26 5. Service must be perfected within ninety (90) days from the date of this order 27 pursuant to Fed. R. Civ. P. 4(m). 28 1 6. Subject to the findings of the screening order (ECF No. 15), within twenty-one (21) 2 days of the date of entry of this order, the Attorney General’s Office shall file a notice advising 3 the Court and Plaintiff of: (a) the names of the defendants for whom it accepts service; (b) the 4 names of the defendants for whom it does not accept service, and (c) the names of the defendants 5 for whom it is filing the last-known-address information under seal. As to any of the named 6 defendants for whom the Attorney General’s Office cannot accept service, the Attorney General’s 7 Office shall file, under seal, but shall not serve the inmate Plaintiff the last known address(es) of 8 those defendant(s) for whom it has such information.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 STEVEN KINFORD, Case No. 2:18-cv-01890-RFB-EJY 4 Plaintiff, 5 v. ORDER
6 SHANNON MOYAL, et al.,
7 Defendants.
8 9 I. DISCUSSION 10 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 11 by a state prisoner. Plaintiff has submitted an application to proceed in forma pauperis. (ECF No. 12 1). Based on the financial information provided, the Court finds that Plaintiff is unable to prepay 13 the full filing fee in this matter. 14 The Court entered a screening order on Plaintiff’s third amended complaint on December 15 12, 2019. (ECF No. 15). The screening order imposed a stay and the Court entered a subsequent 16 order in which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 17 15, 62). The Office of the Attorney General has filed a status report indicating that settlement was 18 not reached and informing the Court of its intent to proceed with this action. (ECF No. 64). As 19 such, the Court lifts the stay in this case. During the stay, Plaintiff filed numerous motions. The 20 Court addresses these motions below. 21 A. ECF No. 25 22 On April 1, 2020, Plaintiff filed a motion for appointment of counsel. (ECF No. 25). A 23 litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights 24 claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. 25 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford 26 counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional 27 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When 28 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 1 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 2 of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive 3 and instead must be viewed together.” Id. In the instant case, the Court does not find exceptional 4 circumstances that warrant the appointment of counsel. The Court denies Plaintiff’s Motion for 5 Appointment of Counsel without prejudice. 6 B. ECF No. 26 7 On April 6, 2020, Plaintiff filed a motion requesting that $60 be transferred from his 8 savings in his prison account to his “dept two account,” so that Plaintiff can use the funds to make 9 photocopies for his civil rights lawsuits. (ECF No. 26 at 1). The Office of the Attorney General 10 filed a response to Plaintiff’s motion, arguing that the Nevada Department of Corrections has a 11 specific procedure in place for inmates to request a withdrawal from their savings account. (ECF 12 No. 35 at 2). The Office of the Attorney General argues that Plaintiff’s motion should be denied 13 because it does not allege that Plaintiff went through this process and made a formal request or 14 that any such request was denied. (Id.) 15 In his reply, Plaintiff states that he did not initially put in an official request because he was 16 told it was doubtful that the request would be granted. (ECF No. 37 at 2). However, as of the date 17 of Plaintiff’s reply, he had made an official request, but he had not yet received a response. (Id.). 18 As Plaintiff’s official request for a transfer of funds was still pending at that time, the Court denies 19 Plaintiff’s motion without prejudice. 20 C. ECF Nos. 40, 54, 57, 58, 59, 61 21 Plaintiff filed numerous motions requesting that the Court order the Office of the Attorney 22 General to engage in settlement discussions, requesting a status update on the date of the mediation 23 conference, or requesting that a mediation conference be set. (ECF Nos. 40, 54, 57, 58, 59, 61). 24 The parties participated in the mediation conference on September 11, 2020. As such, the Court 25 dismisses these motions as moot. 26 D. ECF Nos 51, 52 27 On April 9, 2020, Plaintiff filed a motion for a temporary restraining order and a motion 28 for a preliminary injunction. (ECF Nos. 27, 28). On May 20, 2020, the Office of the Attorney 1 General responded to the motions, and on May 22, 2020, the Court denied Plaintiff’s motions. 2 (ECF No. 50.) On May 28, 2020, Plaintiff filed two identical motions requesting an extension to 3 reply to the filings from the Office of the Attorney General. (ECF Nos. 51, 52). As the Court has 4 already denied Plaintiff’s motion for a preliminary injunction and a temporary restraining order, 5 the Court denies Plaintiff’s motions for an extension of time as moot. 6 II. CONCLUSIONS 7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. 9 Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that this 10 action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2). 11 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 12 prepayment of any additional fees or costs or the giving of security therefor. This order granting 13 leave to proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 14 government expense. 15 3. Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall 16 pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding 17 month’s deposits to Plaintiff’s account (Steven Kinford, #64984), in the months that the account 18 exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk of the 19 Court shall SEND a copy of this order to the Finance Division of the Clerk’s Office. The Clerk 20 of the Court shall also SEND a copy of this order to the attention of the Chief of Inmate Services 21 for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 22 4. The Clerk of the Court shall electronically SERVE a copy of this order and a copy 23 of Plaintiff’s third amended complaint (ECF No. 16) on the Office of the Attorney General of the 24 State of Nevada by adding the Attorney General of the State of Nevada to the docket sheet. This 25 does not indicate acceptance of service. 26 5. Service must be perfected within ninety (90) days from the date of this order 27 pursuant to Fed. R. Civ. P. 4(m). 28 1 6. Subject to the findings of the screening order (ECF No. 15), within twenty-one (21) 2 days of the date of entry of this order, the Attorney General’s Office shall file a notice advising 3 the Court and Plaintiff of: (a) the names of the defendants for whom it accepts service; (b) the 4 names of the defendants for whom it does not accept service, and (c) the names of the defendants 5 for whom it is filing the last-known-address information under seal. As to any of the named 6 defendants for whom the Attorney General’s Office cannot accept service, the Attorney General’s 7 Office shall file, under seal, but shall not serve the inmate Plaintiff the last known address(es) of 8 those defendant(s) for whom it has such information. If the last known address of the defendant(s) 9 is a post office box, the Attorney General's Office shall attempt to obtain and provide the last 10 known physical address(es). 11 7. If service cannot be accepted for any of the named defendant(s), Plaintiff shall file 12 a motion identifying the unserved defendant(s), requesting issuance of a summons, and specifying 13 a full name and address for the defendant(s). For the defendant(s) as to which the Attorney 14 General’s Office has not provided last-known-address information, Plaintiff shall provide the full 15 name and address for the defendant(s). 16 8. If the Attorney General’s Office accepts service of process for any named 17 defendant(s), such defendant(s) shall file and serve an answer or other response to the third 18 amended complaint (ECF No. 16) within sixty (60) days from the date of this order. 19 9. Plaintiff shall serve upon defendant(s) or, if an appearance has been entered by 20 counsel, upon their attorney(s), a copy of every pleading, motion or other document submitted for 21 consideration by the Court. If Plaintiff electronically files a document with the Court’s electronic- 22 filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4- 23 1(b); Nev. Loc. R. 5-1. However, if Plaintiff mails the document to the Court, Plaintiff shall 24 include with the original document submitted for filing a certificate stating the date that a true and 25 correct copy of the document was mailed to the defendants or counsel for the defendants. If 26 counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney 27 named in the notice of appearance, at the physical or electronic address stated therein. The Court 28 may disregard any document received by a district judge or magistrate judge which has not been 1 filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk 2 which fails to include a certificate showing proper service when required. 3 10. Plaintiff’s motion for appointment of counsel (ECF No. 25) is denied without 4 prejudice. 5 11. Plaintiff’s motion for transfer of funds from his savings account (ECF No. 26) is 6 denied without prejudice. 7 12. Plaintiff’s motions regarding settlement discussions and the mediation conference 8 (ECF Nos. 40, 54, 57, 58, 59, 61) are denied as moot. 9 13. Plaintiff’s motions for an extension of time to file a reply to Office of the Attorney 10 General’s response to his motions for a temporary restraining order and preliminary injunction 11 (ECF Nos. 51, 52) are denied as moot. 12 14. This case is no longer stayed. 13 14 DATED this 23rd day of September 2020. 15 16
17 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 18
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