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Barber v. Lee

United States District Court, D. Nevada

June 6, 2019

LARRY BARBER, Plaintiff,
v.
KILIAN LEE, et al., Defendants.

          ORDER

          C.W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Presently 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.

         Also before the court is plaintiff's ex parte motion for appointment of counsel (ECF No. 24), filed on April 17, 2019.

         Also 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.

         I. BACKGROUND

         This is 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.

         II. MOTION TO EXTEND TIME TO RESPOND

         Plaintiff moves for a 30-day continuance to comply with Local Rule 7.1-1, which governs the requirements for the certificate of interested parties.[1] (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.

         III. MOTION FOR APPOINTMENT OF COUNSEL

         Plaintiff 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.

         Civil 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).

         To 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).

         Here, 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 motion.

         IV. ...


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