Edwards v. Clark County et al

Filing 62

ORDER that 57 Motion to Appoint Counsel is DENIED; that 58 Motion to Extend Time to Effectuate Service is GRANTED in part and DENIED in part; that 59 Motion for Amendments to the Scheduling Order is DENIED without prejudice; and that 60 Motion for Additional Interrogatories is DENIED without prejudice. Signed by Magistrate Judge Carl W. Hoffman on 2/24/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RONNIE EDWARDS,
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Plaintiff,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, et al.
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Defendants.
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__________________________________________)

Case No. 2:13-cv-01316-JAD-CWH
ORDER

INTRODUCTION

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This matter is before the Court on Plaintiff Ronnie Edwards’s (“plaintiff”) Motion for

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Appointment of Counsel (doc. # 57), Motion to Extend Time to Effectuate Service (doc. # 58), Motion

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for Amendments to the Scheduling Order (doc. # 59), and Motion for Additional Interrogatories (doc.

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# 60), all filed February 23, 2015.

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DISCUSSION
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Motion for Appointment of Counsel (doc. # 57)

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Plaintiff reasserts his request for the Court to appoint counsel in the instant case. See Doc.

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# 57; Doc. # 29. In support, plaintiff contends he is unable to competently represent himself, he has

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limited access to legal materials and the law library, and complex legal issues are involved in the

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instant case.

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Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to appoint an attorney to represent

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indigent civil litigants upon a showing of “exceptional circumstances.” See Ageyman v. Corrections

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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). However, “[t]here is no constitutional right

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to appointed counsel in a § 1983 action.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)

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(citations omitted). To determine whether the “exceptional circumstances” necessary for appointment

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of counsel are present, the court evaluates: (1) the likelihood of plaintiff’s success on the merits, and

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(2) plaintiff’s ability to articulate his claim pro se “in light of the complexity of the legal issues

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involved.” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)). Neither of these factors is dispositive and both must be viewed together. Wilborn, 789 F.2d

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at 1331. The court has considerable discretion in making these findings.

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Upon review, the Court finds that the exceptional circumstances necessary to justify

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appointment of counsel are not present. Plaintiff has previously demonstrated his ability to articulate

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his claims, has filed various motions and cited to relevant authority despite his purportedly limited

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access to legal materials and the law library, and the legal issues in this case are not complex. So long

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as a pro se litigant is able to “articulate his claims against the relative complexity of the matter,” the

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“exceptional circumstances” that might require the appointment of counsel do not exist. Wilborn, 789

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F.2d at 1331 (emphasis added). As such, this Court denies plaintiff’s request.

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2.

Motion to Extend Time to Effectuate Service (doc. # 58)

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Plaintiff also asks the Court for an additional 120 days to effect service on Defendant Mitchell.

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In determining plaintiff’s request, this Court turns to Rule 4(m) of the Federal Rules of Civil

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Procedure. Under Rule 4(m), service must be accomplished within 120 days from the date a court

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order is entered. According to Rule 4(m), “[i]f a defendant is not served within 120 days after the

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complaint is filed, the court––on motion or on its own after notice to the plaintiff––must dismiss the

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action without prejudice against that defendant or order that service be made within a specified time.”

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Fed.R.Civ.P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend

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the time for service for an appropriate period.” Id.

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Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams,

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473 F.3d 1038, 1041 (9th Cir. 2003). The 120-day time period for service contained in Rule 4(m)

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“operates not as an outer limit subject to reduction, but as an irreducible allowance.” Henderson v.

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United States, 517 U.S. 654, 661 (1996). “On its face, Rule 4(m) does not tie the hands of the district

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court after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to

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grant an extension of time to serve the complaint after that 120-day period.” Mann v. American

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Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Moreover, the Advisory Committee Notes to Rule 4(m)
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state that the rule “explicitly provides that the court shall allow additional time if there is good cause

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for the plaintiff’s failure to effect service in the prescribed 120 days, and authorizes the court to relieve

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a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown.”

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See Fed. R. Civ. P. 4(m), Advisory Committee Notes, 1993 Amendments. Generally, “good cause”

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is equated with diligence. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1337.

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The initial 120-day time period to effectuate service has passed. However, the Court finds that

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plaintiff has been diligent in his efforts to serve various defendants in this case. Nevertheless, plaintiff

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will only be given an additional thirty (30) days to attempt service on Defendant Mitchell.

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3.

Motion for Amendments to the Scheduling Order (doc. # 59)

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Plaintiff then asks the Court to extend various deadlines in the scheduling order issued on

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January 29, 2015, doc. # 55. This Court finds that plaintiff’s request is premature. As such, the Court

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denies plaintiff’s request without prejudice.

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4.

Motion for Additional Interrogatories (doc. # 60)

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Plaintiff further asks the Court for leave to serve an additional forty-five (45) interrogatories

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on each defendant and non-party in the instant case. Rule 33 of the Federal Rules of Civil Procedure

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limits interrogatories to twenty-five (25) per party, including discrete subparts, but the Court may grant

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leave to serve additional interrogatories to the extent consistent with Rule 26(b)(2). See Fed.R.Civ.P.

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33(a)(1). This limitation is not intended to “prevent needed discovery, but to provide judicial scrutiny

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before parties make potentially excessive use of this discovery device.” Advisory Committee Notes

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to the 1993 Amendments to Fed.R.Civ.P. 33.

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This Court finds that plaintiff fails to demonstrate why 25 interrogatories per party is

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insufficient to obtain the information plaintiff seeks. This Court further finds that plaintiff must do

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more than merely represent to this Court that he is “indigen[t]” and, thus, is entitled to an additional

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45 interrogatories per party. As such, this Court denies plaintiff’s request without prejudice.
CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s Motion for Appointment of Counsel
(doc. # 57) is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion to Extend Time to Effectuate Service
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(doc. # 58) is granted in part and denied in part. Plaintiff shall have an additional thirty (30) days

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to attempt service on Defendant Mitchell.

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IT IS FURTHER ORDERED that plaintiff’s Motion for Amendments to the Scheduling
Order (doc. # 59) is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff’s Motion for Additional Interrogatories (doc.
# 60) is denied without prejudice.
DATED: February 24, 2015

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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