United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
a civil rights case brought by a former employee of the
Nevada Department of Corrections (“NDOC”)-Elsie
Spell-and her husband Taniko Smith, an individual in the
NDOC's custody. Before the Court is Plaintiffs'
objection (ECF No. 37) to Magistrate Judge William G.
Cobb's order (ECF No. 36) denying Plaintiffs' motion
for appointment of counsel (ECF No. 35). The Court has
reviewed Defendants Isidro Baca and James Dzurenda's
response (ECF No. 38). For the following reasons, the Court
overrules Plaintiffs' objection.
are proceeding on Count I of their First Amended Complaint
(“FAC”), which alleges that Defendants violated
Plaintiffs' equal protection rights by prohibiting
Plaintiff Spell from visiting Plaintiff Smith based on
Plaintiff Spell's status as a former NDOC employee. (ECF
No. 27 at 4.)
moved for appointment of counsel (ECF No. 35), and the
Magistrate Judge denied the motion, finding that Plaintiffs
did not establish exceptional circumstances that would
warrant appointment of counsel (ECF No. 36 at 2-3).
judges are authorized to resolve pretrial matters subject to
district court review under a “clearly erroneous or
contrary to law” standard. 28 U.S.C. §
636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB
3-1(a) (“A district judge may reconsider any pretrial
matter referred to a magistrate judge in a civil or criminal
case pursuant to LR IB 1-3, where it has been shown that the
magistrate judge's ruling is clearly erroneous or
contrary to law.”). “This subsection . . . also
enable[s] the court to delegate some of the more
administrative functions to a magistrate, such as . . .
assistance in the preparation of plans to achieve prompt
disposition of cases in the court.” Gomez v. United
States, 490 U.S. 858, 869 (1989). “A finding is
clearly erroneous when although there is evidence to support
it, the reviewing body on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.” United States v. Ressam, 593 F.3d
1095, 1118 (9th Cir. 2010) (quotation omitted). A
magistrate's pretrial order issued under 28 U.S.C. §
636(b)(1)(A) is not subject to de novo review, and the
reviewing court “may not simply substitute its judgment
for that of the deciding court.” Grimes v. City
& County of San Francisco, 951 F.2d 236, 241 (9th
is no constitutional right to appointed counsel in a §
1983 action. E.g., Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in
pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 1998)
(en banc). The provision in 28 U.S.C. § 1915(e)(1),
however, gives a district court the discretion to request
that an attorney represent an indigent civil litigant. 28
U.S.C. § 1915(e)(1) (“The court may request an
attorney to represent any person unable to afford
counsel.”); see, e.g., Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Yet,
the statute does not give the court the authority to compel
an attorney to accept appointment, such that counsel remains
free to decline the request. See Mallard v. U.S. Dist.
Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
Furthermore, while the decision to request counsel lies
within the discretion of the district court, the court may
exercise this discretion to request counsel only under
“exceptional circumstances.” Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A
finding of exceptional circumstances requires an evaluation
of both the likelihood of success on the merits and [the
plaintiff's ability to] articulate his claims pro
se in light of the complexity of the legal issues
involved.” Id. (quoting Wilborn, 789
F.2d at 1331) (internal quotation marks omitted).
Magistrate Judge did not clearly err or rule contrary to law
in finding a lack of exceptional circumstances to warrant
appointment of counsel. Plaintiffs argued that counsel should
be appointed because Plaintiffs are unskilled in litigation
and the issues in the Complaint are complex. (ECF No. 35 at
1.) But most pro se plaintiffs are not skilled
litigators and the issue presented in the FAC-a single claim
for violation of equal protection rights-is fairly
argue that the Magistrate Judge erred in finding that
Plaintiffs motion was based in part on Plaintiff Smith's
incarceration. (ECF No. 37 at 1-2.) But the Magistrate
Judge's order was not based on this finding-it was based
on the lack of exceptional circumstances in this case.
further argue that counsel should be appointed based on
Epstein v. Bayer, No. 3:98-cv-0758-ECR (VPC), 2006
WL 3313930 (D. Nev. Oct. 24, 2006). (ECF No. 37 at 4-5.) But
counsel was not appointed in that case until after the Court
granted summary judgment and the Ninth Circuit reversed and
remanded. Epstein, 2006 WL 3313930, at *1.
discuss numerous discovery issues in their objection (ECF No.
37 at 2-4), but these issues are not ...