Ratcliff v. Faulkner

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 RATCLIFF, Case No. 2:21-cv-01351-RFB-DJA

8 Plaintiff, ORDER

9 v.

10 FAULKNER et al.,

11 Defendants.

12 13 I. INTRODUCTION 14 This matter is before the Court on Plaintiff Evan Ratcliff’s Motion for Appointment of 15 Counsel. (ECF No. 16). Defendants have not filed a response to the motion. For the reasons set 16 forth below, Plaintiff's motion is granted. 17 18 II. BACKGROUND 19 Plaintiff is currently incarcerated at the Southern Desert Correctional Center and is in the 20 custody of the Nevada Department of Corrections (“NDOC”). On July 16, 2021, Plaintiff filed a 21 Complaint pursuant to 42 U.S.C. § 1983 and an Application for Leave to Proceed in forma 22 pauperis. ECF No. 1. Plaintiff alleges that, following a cornea transplant, he was prescribed 23 medication to ensure that his body did not reject the transplant. To ensure that Plaintiff received 24 medication on a timely basis, there was a directive in his medical file that he was a chronic care 25 patient, and his prescription must not be allowed to lapse. Plaintiff raised one claim: an Eighth 26 Amendment claim for deliberate indifference to a serious medical need. Plaintiff seeks both 27 injunctive and monetary relief. On December 27, 2021, Plaintiff's Complaint was screened and 28 allowed to proceed. ECF No. 12. On February 10, 2022, the Court granted Plaintiff’s Motion to 1 Proceed in forma pauperis and ordered that service be perfected within 90 days. ECF No. 14. 2 Defendants filed an Answer on November 30, 2022. 3 On November 29, 2021, Plaintiff filed a Motion for Preliminary Injunction and a Motion 4 for Protective Order. ECF Nos. 3, 4. On December 1, 2021, the Court granted Plaintiff’s Motion 5 for Protective Order and entered a temporary restraining order (“TRO”). ECF No. 5. The Court’s 6 Order instructed Defendants to provide Plaintiff with refills of his requested eyedrops. On July 22, 7 2022, Plaintiff filed a Motion for Emergency/Preliminary Injunction and Motion for TRO. ECF 8 Nos. 21, 22. On July 22, 2022, the Court entered an order granting a TRO. ECF No. 23. The Court 9 ordered Defendants to provide Plaintiff with refills of his Dorzolamide eyedrops by 5:00 p.m. on 10 Monday, July 25, 2022. Id. On July 25, 2022, Defendants also filed a Response to the Motion for 11 Preliminary Injunction. ECF No. 28. On August 2, 2022, the Court denied the Motion for 12 Preliminary Injunction without prejudice. ECF No. 31. The Court ordered for Defendants to confer 13 with Plaintiff and to file, by September 1, 2022, a Notice with the Court indicating NDOC’s plan 14 for the ongoing provision of Plaintiff's eye drops. Id. Defendants filed the notice regarding 15 NDOC’s plan on August 30, 2022. ECF No. 33. 16 On March 30, 2022, Plaintiff filed a Motion for Appointment of Counsel. ECF No. 16. 17 Defendants did not file a response. The Court deferred a decision on Plaintiff’s Motion for 18 Appointment of Counsel. ECF No. 31. 19 This Order follows. 20 21 III. LEGAL STANDARD 22 Courts have authority to request that an attorney represent any person unable to afford 23 counsel. 28 U.S.C. § 1915(e)(1). The decision to appoint counsel is within the sound discretion of 24 the district court and requires a showing of exceptional circumstances. Agyeman v. Corrections 25 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether exceptional 26 circumstances exist, courts consider the likelihood that the plaintiff will succeed on the merits as 27 well as the plaintiff's ability to articulate his claims "in light of the complexity of the legal issues 28 involved.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither 1 factor is dispositive, and both must be viewed together. Wilborn, 789 F.2d at 1331. Circumstances 2 common to most prisoners, such as indigence, lack of legal education, and limited law library 3 access, usually do not constitute exceptional circumstances that warrant appointment of counsel. 4 See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 5 6 IV. DISCUSSION 7 Plaintiff’s Motion for Appointment of Counsel provides the following as the basis for his 8 motion. First, Plaintiff cannot afford to hire counsel, as indicated by the fact that he was granted 9 leave to proceed in forma pauperis. Second, the Court granted Plaintiff’s motion for appointment 10 of counsel in a companion case. See Ratcliff v. Raranas, 2:18-cv-00721-RFB-DJA, ECF No. 152.1 11 Third, the issues in both cases are similar.2 Fourth, a lawyer would assist Plaintiff in presenting 12 evidence and cross-examining opposing witnesses if this case proceeds to trial. Finally, Plaintiff’s 13 imprisonment limits his ability to litigate this case, including investigating his case and engaging 14 in discovery. 15 An individual proceeding in forma pauperis must demonstrate that “exceptional 16 circumstances” exist to support the appointment. See Agyeman v. Corr. Corp. of Am., 390 F.3d 17 1101, 1103 (9th Cir. 2004). 18 19 20 1 There, the Court granted Plaintiff’s Motion for Appointment Counsel and referred the action to the Court’s Pro Bono Pilot Program. It appears that, before counsel could be appointed in the case, the parties reached a settlement 21 agreement. Under Federal Rule of Evidence 201, “a court may take judicial notice[, sua sponte,] of ‘matters of public record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 22 2 To conclude that Plaintiff had demonstrated a likelihood of success on the merits, the Court’s June 22, 2022 23 Order, granting a TRO requiring Defendants to provide Plaintiff with refills of his Dorzolamide eyedrops, reiterated legal conclusions from its December 2021 Order. That Order noted that, “[i]n the companion case of Ratcliff v. 24 Raranas, the Court previously held in issuing a temporary restraining order that Plaintiff was likely to succeed on the merits of his Eighth Amendment claim. See 2:18-cv-00721-RFB-DJA, ECF No. 24 at 4.” Ratcliff v. Faulkner, No. 25 21-CV-01351, 2021 WL 5761765, at *2 (D. Nev. Dec. 1, 2021). “The Court [found] that the facts alleged by Plaintiff in the instant motion [we]re nearly identical to those alleged in the prior motion.” Id. It also found that “Defendant 26 NDOC has a pattern and history of not properly providing these mediations to Plaintiff. This prior pattern and history [are] documented in the public record in this case and in the 2018 case.” Id. (footnote omitted). 27

28 1 V. CONCLUSION 2 IT IS THEREFORE ORDERED that Plaintiff’s Motions to Appoint Counsel (ECF No. 3 16) is GRANTED. 4 IT IS FURTHER ORDERED that this case shall be referred to the Court’s Pro Bono 5 Program. 6 7 DATED: March 31, 2023.

8 __________________________________ 9 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28