United States District Court, D. Nevada
ORDER (MOTS. APPOINT COUNSEL - ECF NOS. 25, 27; MOT.
EXT. TIME - ECF NO. 26; MOT. EVIDENTIARY H'RG - ECF NO.
28; MOT. PRODUCE EXHIBITS - ECF NO. 29)
ATXEEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff Kraig Smith's
Motions for Appointment of Counsel (ECF Nos. 25, 27), Motion
to Extend Time (ECF No. 26), Motion for Evidentiary Hearing
(ECF No. 28), and Motion to Produce Exhibits (ECF No. 29).
These Motions are referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules
Smith is a pro se prisoner in the custody of the Nevada
Department of Corrections. He has received permission to
proceed in forma pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local
Rules of Practice. This case is brought pursuant to 28 U.S.C.
§ 1983, and based on allegations regarding his treatment
while he was incarcerated at the Nye County Detention Center.
Upon review of the Complaint (ECF No. 14), the court
determined that it stated a plausible claim for deliberate
indifference to serious medical need in violation of the
Eighth Amendment. See Sept. 26, 2017 Screening Order
(ECF No. 13). The court directed issuance of summonses for
defendants Wehrly, Mean, Boruchowitz, Gray, Arms, Jensen,
Hill, Lacosio, Pike, Burk, McKillips, Huntley, and Cleveland.
Following service, ECF Nos. 18, 19, defendants filed their
Answers (ECF Nos. 21, 22) on January 3, 2018.
February 9, 2018, the court entered a Scheduling Order (ECF
No. 31) directing that discovery be completed by May 25,
2018. Id. ¶ 3(a). The Scheduling Order also
provided deadlines to: (i) amend pleadings or join additional
parties, April 10, 2018; (ii) file discovery motions, May 25,
2018; and (iii) file dispositive motions, June 25, 2018.
See id. ¶¶ 1-3.
Motions for Appointment of Counsel (ECF Nos. 25, 27)
litigant in a civil rights action does not have a Sixth
Amendment right to appointed counsel. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing
Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981)). Pursuant to 28 U.S.C. § 1915(e)(1), the court
may ask an attorney to represent an IFP litigant.
Id. This statute does not require that the court
appoint counsel or authorize the court to direct payment for
a litigant's attorney's fees, it merely allows the
court to request that an attorney represent an indigent
litigant on a pro bono basis. See Mallard v. United
States Dist. Ct., 490 U.S. 296, 304-05 (1989);
United States v. 30.64 Acres of Land, 795 F.2d 796,
798-804 (9th Cir. 1986).
appointment of counsel is limited to cases presenting
exceptional circumstances. Agyeman v. Corr. Corp. of
Am., 390 F.3d 1101, 1103 (9th Cir. 2004). The word
“exceptional” is defined as “out of the
ordinary course, unusual, ” or “rare.”
See Oxford English Dictionary (Oxford Univ. Press
2015). In deciding whether to appoint counsel, the court
should consider: (1) the likelihood of success of the pro se
party's claims on the merits, and (2) the ability of the
party to articulate claims pro se in light of the complexity
of the legal issues involved. Harrington v.
Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015); see
also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991) (finding that neither factor is controlling).
Mr. Smith's motions ask the court to appoint counsel
because he is confused and needs legal help. He provides no
other reasons to justify his multiple requests. The motions do
not establish exceptional circumstances to justify the
appointment of counsel. Smith's Complaint states a
colorable conditions of confinement claim against 13
defendants. Based on the record, the court is unable to
assess the likelihood of success of his claim on its merits.
However, the court finds that the facts alleged and legal
issues raised are not especially complex. Since commencing
this action, Mr. Smith has submitted numerous motions to the
court. He has demonstrated sufficient ability to write and
articulate his claims. The court appreciates that almost
every pro se party would benefit from representation by
counsel. However, the court cannot require counsel to accept
representation on a pro bono basis, and the number of
attorneys available to accept a pro bono appointment is very
small. The motions are denied.
Mr. Smith's Remaining Motions
Smith filed the Motion to Extend Time (ECF No. 26), Motion
for Evidentiary Hearing (ECF No. 28) and Motion to Produce
Exhibits (ECF No. 29) on January 25 and 26, 2018. Each of
these motions are addressed to the Clerk of the Court. He
repeatedly asks the clerk to keep him posted of the case
developments. The clerk's office will notify parties as
soon as any action is taken in his or her case. However, due
to the extraordinary number of civil actions pending before
the court, the clerk is unable to respond in writing to
individual inquiries regarding the status of each case. As
long as a plaintiff keeps the court apprised of his or her
current address, the clerk's office will promptly mail
him or her a copy of all court decisions and any other
filings that might affect the status of the case. The Local
Rules require that parties immediately file with the court
written notification of any change of address or other
contact information. LR IA 3-1; LSR 2-2.The court will
notify a plaintiff if he or she has not submitted a document
required in the case.
addition, Mr. Smith asks for a 60 to 90-day enlargement of
time to amend his complaint. This request for extension of
time was made on January 19, 2018, three weeks before the
court entered the Scheduling Order (ECF No. 31) setting
various deadlines in this case. The Scheduling Order gives
the parties until April 10, 2018, to amend the pleadings or
join additional parties. Accordingly, the Motion to Extend
Time (ECF No. 26) is denied as moot.
court also notes that none of Mr. Smith's motions include
a memorandum of points and authorities as required by LR
7-2(a) of the Local Rules of Practice. The Motion to Produce
Exhibits (ECF No. 29) states that Smith sent a copy of his
exhibits to defense counsel and the clerk's office. He
states that he is enclosing a copy of his letter to defense
counsel with his motion along with almost 40 pages of
“exhibits, ” which appear to be copies of
defendants' answer, Smith's complaint, a letter to
one defendant, a letter to an attorney asking for
representation, and two witness statements. He requests no
specific relief with regard to such exhibits. Pursuant to LR
26-8 of the Local Rules of Practice, written discovery must
not be filed ...