Swallow v. Elko County

• Court: District Court, D. Nevada
• Decided: July 29, 2025
• Docket: 3:23-cv-00227
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

5 MARCUS RONALD SWALLOW, Case No. 3:23-cv-00227-ART-CLB

6 Plaintiff, ORDER DENYING MOTION FOR v. APPOINTMENT OF COUNSEL 7 (ECF NO. 57) MIGUEL PANTELAKIS, et al., 8 Defendants. 9 10 Plaintiff Marcus Ronald Swallow brings this action under 42 U.S.C. § 1983 11 against Defendants Miguel Pantelakis, Matthew Ulm, and Luis Perez alleging 12 that Defendants used excessive force against him. Before the Court is Plaintiff’s 13 Motion for Appointment of Counsel (ECF No. 57). The Court denies that motion, 14 but grants Plaintiff additional time to respond to Defendants’ pending Motion for 15 Summary Judgment (ECF No. 54). 16 I. BACKGROUND 17 In September 2024, Defendants moved for summary judgment based on 18 statute of limitations, no constitutional violation, and qualified immunity. (ECF 19 No. 54.) Plaintiff has not opposed that motion. Instead, Plaintiff filed a request 20 for extension of time, stating that he has had issues accessing mail, and filed 21 this motion for appointment of counsel. 22 II. DISCUSSION 23 Generally, a person has no right to counsel in civil actions. Palmer v. 24 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654 F.2d 25 1349, 1353 (9th Cir. 1981)). The Court may only appoint counsel for a party 26 proceeding in forma pauperis in exceptional circumstances. 28 U.S.C. § 27 1915(e)(1). Tilei v. California Department of Corrections and Rehabilitation, 644 28 Fed.Appx. 758, 759 (9th Cir. 2016) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 1 (9th Cir. 1991)). In order to determine whether exceptional circumstances exist, 2 the Court must consider “the likelihood of success on the merits as well as the 3 ability of the petitioner to articulate his arguments pro se in light of the 4 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (citation 5 omitted). Neither of these considerations is dispositive and the Court must 6 examine them together. Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 7 (9th Cir. 1986)). 8 The Court cannot conclude on this record that exceptional circumstances 9 warranting the appointment of counsel exist. Swallow argues that this case has 10 become too complex to handle without a lawyer. (ECF No. 57 at 1.) He points to 11 his education and learning disability, difficulties accessing documents, and the 12 fact that Defendants are officers outside the prison. (Id. at 2.) Swallow argues 13 that a trial would be too complex for him to litigate without an attorney. (Id.) The 14 Court is sympathetic to these issues but finds that Swallow has been able to 15 articulate his arguments well in prior briefing at the motion to dismiss stage, 16 including by filing a motion to apply equitable tolling. (See ECF Nos. 25, 26.) This 17 case will only proceed to trial if Swallow is successful in defeating Defendants’ 18 motion for summary judgment, which he has not yet replied to. Defendants 19 argue that Swallow’s claims are barred by the statute of limitations, that their 20 use of force was reasonable in the circumstances, and that they are entitled to 21 qualified immunity. (ECF No. 54.) Despite his challenges, the Court finds 22 Swallow is sufficiently able to advocate for himself at this stage of the proceedings 23 and denies his motion for appointment of counsel. 24 However, due to Swallow’s issues accessing mail, the Court gives Swallow 25 an additional 14 days to respond to Defendants’ motion for summary judgment. 26 The Court reminds Swallow that Defendants’ motion for summary judgment 27 could end this case. 28 1 III. CONCLUSION 2 The Court therefore DENIES Plaintiff's Motion for Appointment of Counsel 3 || (ECF No. 57) without prejudice. 4 The Court extends Plaintiff's deadline to respond to Defendants’ Motion for 5 || Summary Judgment (ECF No. 54) to August 13, 2025. Defendants’ reply will be 6 || due 7 days from that date. 7 8 DATED: July 29, 2025 9 10 Aras jlosed Wen M ANNER. TRAUM 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28