United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the court is plaintiff Larry Barber's motion to
extend time to respond (ECF No. 23), filed on April 17, 2019.
Defendants did not file a response.
before the court is plaintiff's ex parte motion for
appointment of counsel (ECF No. 24), filed on April 17, 2019.
before the court is plaintiff's motion to extend the
scheduling order (ECF No. 26), filed on May 10, 2019.
Defendants James Dzurenda and Brian Williams filed a notice
of non-opposition (ECF No. 27) on May 24, 2019.
a pro se prisoner civil rights case alleging excessive force
and retaliation. (Second Am. Compl. (ECF No. 8); Order (ECF
No. 9).) Plaintiff alleges that defendant Killian Lee, a
correctional officer, attempted to break his wrist while
placing him in handcuffs during a search of plaintiff's
cell. Plaintiff further alleges that after the incident with
Officer Lee, he wrote letters to defendants Brian Williams,
High Desert State Prison Warden, and James Dzurenda, the
Nevada Department of Corrections director, filing grievances
against Lee. Plaintiff further alleges that following the
grievances, his points were increased and that he was then
transferred to a maximum-security prison.
MOTION TO EXTEND TIME TO RESPOND
moves for a 30-day continuance to comply with Local Rule
7.1-1, which governs the requirements for the certificate of
interested parties. (Mot. to Extend (ECF No. 23).) Under Local
Rule 7-2(d), the “failure of an opposing party to file
points and authorities in response to any motion, except a
motion under Fed.R.Civ.P. 56 or a motion for attorney's
fees, constitutes a consent to granting of the motion.”
Here, defendants did not file a response. The court therefore
grants plaintiff's motion.
MOTION FOR APPOINTMENT OF COUNSEL
also moves for the ex parte appointment of legal counsel to
assist him in this case. As a preliminary matter, the court
finds no reason why this motion should be sealed on the
docket. Therefore, the court orders the clerk of court to
unseal plaintiff's motion.
litigants do not have a Sixth Amendment right to appointed
counsel. Storseth v. Spellman, 654 F.2d 1349, 1353
(9th Cir. 1981). In very limited circumstances, federal
courts are empowered to request an attorney to represent an
indigent civil litigant. For example, courts have discretion,
under 28 U.S.C. § 1915(e)(1), to “request”
that an attorney represent indigent civil litigants upon a
showing of “exceptional circumstances.”
Agyeman v. Corrections Corp. of Am., 390 F.3d 1101,
1103 (9th Cir. 2004). The circumstances in which a court will
make such a request, however, are exceedingly rare and
require a finding of extraordinary circumstances. United
States v. 30.64 Acres of Land, 795 F.2d 796, 799-800
(9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986).
determine whether the “exceptional circumstances”
necessary for appointment of counsel are present, the court
evaluates (1) the likelihood of plaintiff's success on
the merits and (2) the plaintiff's ability to articulate
his claim pro se “in light of the complexity of the
legal issues involved.” Agyeman, 390 F.3d at
1103 (quoting Wilborn, 789 F.2d at 1331). Neither of
these factors is dispositive and both must be viewed
together. Wilborn, 789 F.2d at 1331. It is within
the court's discretion whether to request that an
attorney represent an indigent civil litigant under 28 U.S.C.
§ 1915(e)(1). Palmer v. Valdez, 560 F.3d 965,
970 (9th Cir. 2009).
Barber does not demonstrate the exceptional circumstances
required for the appointment of an attorney. Given the
case's early procedural posture, the court is unable to
evaluate Barber's likelihood of success on the merits.
But Barber has thus far demonstrated an ability to articulate
his claims without an attorney, and the legal issues in this
case are not complex. Any pro se litigant “would be
better served with the assistance of counsel.” Rand
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing
Wilborn, 789 F.2d at 1331). Nonetheless, so long as
a pro se litigant can “articulate his claims against
the relative complexity of the matter, ” the
“exceptional circumstances” which might require
the appointment of counsel do not exist. Id. The
court in its discretion therefore will deny Barber's