Ratcliff v. Caldarone

• Court: District Court, D. Nevada
• Decided: January 3, 2023
• Docket: 2:21-cv-01155
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * * Evan Ratcliff, Case No. 2:21-cv-1155-CDS-BNW 4 Plaintiff, 5 Order v. 6 Caldarone, 7 Defendant. 8 9 Before the Court is pro se Evan Ratcliff’s motion for appointment of counsel. ECF No. 10 38. Because the Court finds that exceptional circumstances exist, it grants Plaintiff’s motion. 11 I. Background. 12 Plaintiff is currently incarcerated at Southern Desert Correctional Center and is in the 13 custody of the Nevada Department of Corrections (NDOC). Plaintiff is familiar with the 14 arguments he made in support of his request. As a result, the Court does not repeat them here. 15 II. Legal Standard. 16 Courts have authority to request that an attorney represent any person unable to afford 17 counsel. 28 U.S.C. § 1915(e)(1). The decision to appoint counsel is within the sound discretion of 18 the district court and requires a showing of exceptional circumstances. Agyeman v. Corrections 19 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether exceptional 20 circumstances exist, courts consider the likelihood that the plaintiff will succeed on the merits, as 21 well as the plaintiff’s ability to articulate his claims “in light of the complexity of the legal issues 22 involved.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither 23 factor is dispositive, and both must be viewed together. Wilborn, 789 F.2d at 1331. 24 A. Likelihood of Success on the Merits 25 “The Ninth Circuit has indicated that the articulation of a cognizable claim for relief may 26 itself be sufficient to satisfy the ‘merit’ analysis on a motion for appointment of counsel.” See 27 Tilei v. McGuinness, 642 Fed. Appx. 719, 722 (9th Cir. 2016) (finding that plaintiff’s “complaint 1 Court already indicated that the likelihood of success on Plaintiff’s Eighth Amendment claim is 2 not high, the same does not apply to his First Amendment retaliation claim. ECF No. 29 at 5-6. 3 B. Ability to Articulate Claims 4 While many courts have indicated that First Amendment retaliation claims are not 5 complex, Ninth Circuit precedent requires the court to also consider plaintiff’s ability to articulate 6 these claims. Here, there is evidence in the record suggesting that plaintiff will have problems 7 articulating his claims. To begin, Plaintiff filed a motion for a protective order and a motion for a 8 preliminary injunction. As noted in the opposition, Plaintiff did not cite to or analyze the requisite 9 standards for the relief sought. ECF Nos. 12, 13, 15, and 19. The Court also noted that the relief 10 sought to extend “the court’s equitable powers over nonparties to the case.” ECF No. 29 at 6. 11 After that order, plaintiff sought a temporary restraining order and another preliminary injunction. 12 In those motions, the requested injunction concerned facts that were not part of underlying 13 lawsuit. ECF No. 39 at 4-5. 14 Given the factors analyzed above, the Court finds that exceptional circumstances exist for 15 the appointment of counsel. Because the Court will exercise its discretion to appoint counsel and 16 grant Plaintiff’s motion, it will refer this case to the Court’s Pro Bono Program to attempt to find 17 an attorney to accept Plaintiff’s case. Plaintiff should be aware that the Court has no authority to 18 require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(e). Mallard 19 v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 298 (1989). Rather, when a court 20 “appoints” an attorney, it can only do so if the attorney voluntarily accepts the assignment. Id. 21 Additionally, Plaintiff is reminded that unless and until counsel is appointed, he is still 22 responsible for complying with all deadlines in his case. If counsel is found, Plaintiff will be 23 contacted by counsel. 24 IT IS THEREFORE ORDERED that Plaintiff’s motion for appointment of counsel 25 (ECF No. 38) is GRANTED. 26 IT IS FURTHER ORDERED that this case shall be referred to the Pro Bono Program 27 adopted in Second Amended General Order 2019-07 for the purpose of screening for financial 1 Plaintiff. Plaintiff is reminded that he must comply with all deadlines currently set in his case and 2 there is no guarantee that counsel will be appointed. If counsel is found, Plaintiff will be 3 contacted by counsel. 4 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to forward this 5 order to the Pro Bono Liaison. 6 IT IS FURTHER ORDERED that the hearing set for January 16, 2023 is VACATED. 7 8 DATED: January 3, 2023 9 BRENDA WEKSLER 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27