United States District Court, D. Nevada
22, 2017, the Court issued a screening order which dismissed
some claims with leave to amend. (ECF No. 6 at 9). The Court
granted Plaintiff 28 days from the date of that order to file
an amended complaint. (Id. at 10). The Court
specifically stated that if Plaintiff chose not to file an
amended complaint, the action would proceed on Count III
against Defendant Drew only. (Id.). Plaintiff has
not filed an amended complaint. Pursuant to the screening
order, this action shall proceed on Count III against
Defendant Drew only.
has filed a motion for appointment of counsel. (ECF No. 9). A
litigant does not have a constitutional right to appointed
counsel in 42 U.S.C. § 1983 civil rights claims.
Storseth v. Spel I man, 654 F.2d 1349, 1353 (9th
Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1),
"[t]he court may request an attorney to represent any
person unable to afford counsel." However, the court
will appoint counsel for indigent civil litigants only in
"exceptional circumstances." Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983
action). "When determining whether 'exceptional
circumstances' exist, a court must consider 'the
likelihood of success on the merits as well as the ability of
the petitioner to articulate his claims pro se in
light of the complexity of the legal issues involved."
Id. "Neither of these considerations is
dispositive and instead must be viewed together."
Id. In the instant case, the Court does not find
exceptional circumstances that warrant the appointment of
counsel. The Court denies the motion for appointment of
foregoing reasons, IT IS ORDERED that, pursuant to the
Court's screening order (ECF No. 6), this action shall
proceed on Count III against Defendant Drew only.
FURTHER ORDERED that given the nature of the claim(s) that
the Court has permitted to proceed, this action is STAYED for
ninety (90) days to allow Plaintiff and Defendant(s) an
opportunity to settle their dispute before the $350.00 filing
fee is paid, an answer is filed, or the discovery process
begins. During this ninety-day stay period, no other
pleadings or papers shall be filed in this case, and the
parties shall not engage in any discovery. The Court will
refer this case to the Court's Inmate Early Mediation
Program, and the Court will enter a subsequent order.
Regardless, on or before ninety (90) days from the date this
order is entered, the Office of the Attorney General shall
file the report form attached to this order regarding the
results of the 90-day stay, even if a stipulation for
dismissal is entered prior to the end of the 90-day stay. If
the parties proceed with this action, the Court will then
issue an order setting a date for Defendants to file an
answer or other response. Following the filing of an answer,
the Court will issue a scheduling order setting discovery and
dispositive motion deadlines.
FURTHER ORDERED that "settlement" may or may not
include payment of money damages. It also may or may not
include an agreement to resolve Plaintiffs issues
differently. A compromise agreement is one in which neither
party is completely satisfied with the result, but both have
given something up and both have obtained something in
FURTHER ORDERED that if the case does not settle, Plaintiff
will be required to pay the full $350.00 filing fee. This fee
cannot be waived. If Plaintiff is allowed to proceed in
forma pauperis, the fee will be paid in installments
from his prison trust account. 28 U.S.C. § 1915(b). If
Plaintiff is not allowed to proceed in forma
pauperis, the $350.00 will be due immediately.
FURTHER ORDERED that if any party seeks to have this case
excluded from the inmate mediation program, that party shall
file a "motion to exclude case from mediation" on
or before twenty-one (21) days from the date of this order.
The responding party shall have seven (7) days to file a
response. No reply shall be filed. Thereafter, the Court will
issue an order, set the matter for hearing, or both.
FURTHER ORDERED that the Clerk of the Court shall
electronically SERVE a copy of this order, the original
screening order (ECF No. 6) and a copy of Plaintiffs
complaint (ECF No. 7) on the Office of the Attorney General
of the State of Nevada, attention Traci Plotnick.
FURTHER ORDERED that the Attorney General's Office shall
advise the Court within twenty-one (21) days of the date of
the entry of this order whether it will enter a limited
notice of appearance on behalf of Defendants for the purpose
of settlement. No defenses or objections, including lack of
service, shall be waived as a result of the filing of the
limited notice of appearance.
FURTHER ORDERED that the motion for appointment of counsel
(ECF No. 9) is denied.
OF ATTORNEY GENERAL RE: RESULTS OF 90-DAY STAY
ONLY THE OFFICE OF THE ATTORNEY GENERAL SHALL FILE THIS FORM.
THE INMATE ...