Peterson v. Garrett

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 ROBERT PETERSON, Case No. 3:23-CV-00016-ART-CLB

5 Plaintiff, ORDER DENYING MOTION TO INTERVENE AND MOTION 6 v. TO APPOINT ATTORNEY FOR MINOR CHILD 7 TIM GARRETT, et. al., [ECF Nos. 40, 41] 8 Defendants.

9 10 This case involves a civil rights action filed by Plaintiff Robert Peterson 11 (“Peterson”) related to allegations that Defendants Tim Garrett, Harold Wickham, and 12 Brian Williams (collectively referred to as “Defendants”) impermissibly prohibited 13 Peterson from visiting with his minor children. (See ECF No. 1-1.) Peterson has now filed 14 two motions on behalf of his minor child: (1) a motion to intervene, (ECF No. 40); and (2) 15 a motion to appoint attorney for minor child, (ECF No. 41). Peterson asks that his minor 16 child be allowed to “intervene” as a party to this action and further asks that the Court 17 appoint an attorney representative to assist his minor child in the matter. (ECF Nos. 40, 18 41.) Defendants did not oppose or otherwise respond to either of the motions. For the 19 reasons discussed below, the motions, (ECF Nos. 40, 41), are denied. 20 First, Peterson is without authority to litigate on behalf of others. Fed. R. Civ. P. 21 23(a)(4). See, e.g., Carter v. Taylor, 540 F.Supp.2d 522, 527 (D. Del. 2008); Reed v. Bd. 22 Of Prison Terms, No. C 03-2917, 2003 WL 21982471, at *1 (N.D. Cal. Aug. 8, 2003); 23 see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing 24 in propria persona had no authority to represent anyone other than himself.”). 25 Second, Peterson does not explain why his minor child needs to “intervene” in 26 this action, which is about his alleged inability to have prison visits with this minor child. 27 Nevertheless, intervention, both of right and by permission, can only occur “[o]n factors: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” United States 3| v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (citation omitted). Under the 4} Ninth Circuit’s longstanding precedent, “[a] party seeking to intervene must act as soon 5 | as he ‘knows or has reason to know that his interests might be adversely affected by the 6 | outcome of the litigation.” United States v. Oregon, 913 F.2d 576, 589 (9th Cir. 1990) 7 | (quoting United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989)); accord Alisal Water, 370 F.3d at 922-23; Commercial Realty Projects, 309 F.3d at 1120. The 9 | Court does not find the request to intervene timely as this case was filed nearly two years 10 | ago for events that occurred nearly six years before that. (See ECF No. 1-1.) 11 Finally, there is no constitutional right to appointed counsel in a § 1983 action. 12| E.g., Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 14| U.S.C. §1915(e)(1) gives the court discretion to “request an attorney to represent any 15| person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1998) (en banc.) While the decision to request 17 counsel lies within the discretion of the district court, the court may exercise this discretion to request counsel only under “exceptional circumstances.” Terrell v. Brewer, 19| 935 F.2d 1015, 1017 (9th Cir. 1991). Peterson’s conclusory statement that appointing 20 | counsel is in the best interest of his minor child, is not an exceptional circumstance. 21 Consistent with the above, IT IS ORDERED that Peterson’s motion to intervene 22 | and motion to appoint counsel, (ECF Nos. 40, 41), are DENIED. 23| DATED: December 30, 2024 . 24 25 UNITED als JUDGE 26 27 28