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Smith v. Nye County Detention Center

United States District Court, D. Nevada

February 13, 2018

KRAIG SMITH, Plaintiff,



         This 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 of Practice.


         Mr. 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.[1]

         On 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.


         I. Motions for Appointment of Counsel (ECF Nos. 25, 27)

         A 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).

         The 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).

         Here, 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.[2] 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.

         II. Mr. Smith's Remaining Motions

         Mr. 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.[3]The court will notify a plaintiff if he or she has not submitted a document required in the case.

         In 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.

         The 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 ...

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