Reed v. Russell

• Court: District Court, D. Nevada
• Decided: March 6, 2024
• Docket: 2:22-cv-00537
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 DASHOD REED, Case No. 2:22-cv-00537-RFB-BNW 4 Plaintiff, ORDER 5 v.

6 PERRY RUSSELL, et al.,

7 Defendants.

8 9 This action is a pro se civil rights complaint filed under 42 U.S.C. § 1983 by a 10 former state prisoner. In compliance with this Court’s order, Plaintiff has submitted an 11 application to proceed in district court without prepaying fees or costs following his release 12 from prison. (ECF Nos. 22, 23). Based on the financial information provided, the Court 13 grants Plaintiff leave to proceed without prepayment of fees or costs under 28 U.S.C. 14 § 1915(a)(1).1 15 On October 10, 2023, the Court entered a screening order. (ECF No. 15). The 16 screening order imposed a stay, and the Court entered a subsequent order assigning the 17 case to mediation by a court-appointed mediator. (ECF No. 15, 19). The parties 18 participated in a mediation conference, but they did not reach a settlement. (ECF No. 19 26). 20 During the stay, Plaintiff filed a motion for appointment of counsel. (ECF No. 18). 21 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 22 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant 23 to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person 24 unable to afford counsel.” However, the court will appoint counsel for indigent civil 25 litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th 26 Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances’ exist, 27 1 Plaintiff is not subject to the requirements of 28 U.S.C. § 1915(a)(2), (b) because he is 28 no longer a “prisoner” within the meaning of the statute. See 28 U.S.C. § 1915(h). 1 a court must consider ‘the likelihood of success on the merits as well as the ability of the 2 petitioner to articulate his claims pro se in light of the complexity of the legal issues 3 involved.” Id. “Neither of these considerations is dispositive and instead must be viewed 4 together.” Id. 5 In his motion, Plaintiff argues that this case will require depositions and a jury trial, 6 and that he does not have skill to conduct either depositions or a jury trial. (ECF No. 18 7 at 3-4). However, that is not an exceptional circumstance. Many cases brought by 8 indigent litigants require depositions or a jury trial. Plaintiff also alleges that the 9 Defendants may lie, and that the case will hinge on credibility, which requires a skilled 10 attorney to conduct cross-examination. (Id.). Again, the possibility of contradictory 11 testimony is also common in cases brought by indigent litigants and is not an exceptional 12 circumstance. 13 Plaintiff has successfully articulated his claims in the first amended complaint, and 14 the next step in this case is for the Defendants to file an answer. Plaintiff’s claims, which 15 include First Amendment retaliation claims and a Fourteenth Amendment due process 16 claim based on being placed in administrative segregation, do not appear to be 17 particularly complex. The Court finds that Plaintiff has not demonstrated exceptional 18 circumstances supporting the appointment of counsel at this time, and the Court denies 19 the motion without prejudice. 20 IT IS THEREFORE ORDERED that: 21 1. Plaintiff’s application to proceed in district court without prepaying fees or 22 costs (ECF No. 23) is GRANTED. 23 2. Plaintiff is permitted to maintain this action to conclusion without the 24 necessity of prepayment of any additional fees or costs or the giving of security therefor. 25 3. The Clerk of the Court will electronically SERVE a copy of this order and a 26 copy of Plaintiff’s amended complaint (ECF No. 16) on the Office of the Attorney General 27 of the State of Nevada, by adding the Attorney General of the State of Nevada to the 28 docket sheet. This does not indicate acceptance of service. 1 4. Service must be perfected within ninety (90) days from the date of this order 2 pursuant to Fed. R. Civ. P. 4(m). 3 5. Subject to the findings of the screening order (ECF No. 15), within twenty- 4 one (21) days of the date of entry of this order, the Attorney General’s Office will file a 5 notice advising the Court and Plaintiff of: (a) the names of the defendants for whom it 6 accepts service; (b) the names of the defendants for whom it does not accept service, 7 and (c) the names of the defendants for whom it is filing the last-known-address 8 information under seal. As to any of the named defendants for whom the Attorney 9 General’s Office cannot accept service, the Office will file, under seal, but will not serve 10 the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such 11 information. If the last known address of the defendant(s) is a post office box, the Attorney 12 General's Office will attempt to obtain and provide the last known physical address(es). 13 6. If service cannot be accepted for any of the named defendant(s), Plaintiff 14 will file a motion identifying the unserved defendant(s), requesting issuance of a 15 summons, and specifying a full name and address for the defendant(s). For the 16 defendant(s) as to which the Attorney General has not provided last-known-address 17 information, Plaintiff will provide the full name and address for the defendant(s). 18 7. If the Attorney General accepts service of process for any named 19 defendant(s), such defendant(s) will file and serve an answer or other response to the 20 amended complaint (ECF No. 16) within sixty (60) days from the date of this order. 21 8. Plaintiff shall serve upon defendant(s) or, if an appearance has been 22 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 23 document submitted for consideration by the Court. If Plaintiff electronically files a 24 document with the Court’s electronic-filing system, no certificate of service is required. 25 Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff 26 mails the document to the Court, Plaintiff shall include with the original document 27 submitted for filing a certificate stating the date that a true and correct copy of the 28 document was mailed to the defendants or counsel for the defendants. If counsel has 4|| entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. 3|| The Court may disregard any document received by a district judge or magistrate judge 4|| which has not been filed with the Clerk, and any document received by a district judge, 5|| magistrate judge, or the Clerk which fails to include a certificate showing proper service || when required. 7 9. Plaintiff's motion for appointment of counsel (ECF No. 18) is denied without □□ prejudice. 9 10. ‘This case is no longer stayed. 10 11 DATED THIS _6_ day of March 2024. Li pr la WEED 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28