Kern v. Stroud et al

Filing 95

ORDER granting 89 Motion to Appoint Counsel - case shall be referred to the Pilot Pro Bono Program for Plaintiff; denying 90 Motion for Settlement; denying 92 Motion for Clarification. Parties shall file a joint pretrial order within 90 days. Signed by Judge Richard F. Boulware, II on 4/24/2017. (Copies have been distributed pursuant to the NEF, cc: Pro Bono Clerk - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHEN R.J. KERN, JR.,

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Plaintiff,

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Case No. 2:13-cv-02227-RFB-NJK
ORDER

v.
JASON HENRY, et al.,

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Motion for Appointment of Counsel
(ECF No. 89)

Defendants.

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I.

INTRODUCTION

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This matter is before the Court on Plaintiff Stephen R.J. Kern, Jr.’s Motion for

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Appointment of Counsel, ECF No. 89. Defendants filed a response to the motion, arguing that

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appointment of counsel is not appropriate in this case. For the reasons set forth below, Plaintiff’s

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motion is granted.

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II.

BACKGROUND

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Plaintiff is currently incarcerated at High Desert State Prison and is in the custody of the

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Nevada Department of Corrections (NDOC). Plaintiff’s Second Amended Complaint was

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screened and allowed to proceed on November 14, 2014. ECF No. 14. Plaintiff raised three claims:

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an 8th Amendment claim for cruel and unusual punishment; an 8th Amendment claim for deliberate

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indifference to a serious medical need; and an 8th Amendment claim regarding unconstitutional

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conditions of confinement. Plaintiff filed a Motion for Summary Judgment on July 30, 2015. ECF

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No. 37. Defendants filed their Motion for Summary Judgment on October 21, 2015. ECF No. 54.

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The Court denied Plaintiff’s Motion for Summary Judgment, and granted in part and denied in part

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Defendants’ Motion for Summary Judgment. ECF No. 88. Plaintiff’s 8th Amendment claim

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regarding unconstitutional conditions of confinement will proceed to trial.

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III.

LEGAL STANDARD

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Courts have authority to request that an attorney represent any person unable to afford

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counsel. 28 U.S.C. § 1915(e)(1). The decision to appoint counsel is within the sound discretion of

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the district court and requires a showing of exceptional circumstances. Agyeman v. Corrections

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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether exceptional

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circumstances exist, courts consider the likelihood that the plaintiff will succeed on the merits as

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well as the plaintiff’s ability to articulate his claims “in light of the complexity of the legal issues

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involved.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither

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factor is dispositive and both must be viewed together. Wilborn, 789 F.2d at 1331.

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IV.

DISCUSSION

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The Court finds that exceptional circumstances exist to appoint counsel for Plaintiff in this

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case. With respect to the first factor, Plaintiff has demonstrated a likelihood of success on the

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merits of his remaining 8th Amendment claim. This claim has survived summary judgment and

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will proceed to trial, and Plaintiff has presented evidentiary support for his claim. The second

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factor requires the Court to consider Plaintiff’s ability to articulate his claims in consideration of

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the complexity of the legal issues presented. Plaintiff’s Eighth Amendment conditions of

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confinement claim will involve both nuances of the law as it relates to different aspects of

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confinement, e.g. exercise and hygiene, and trial preparation in relation to witnesses who are

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confined (or were confined) with Plaintiff. While Plaintiff has been able to sufficiently raise

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genuine issues of material fact for the one claim that is proceeding, this standard is different and

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less burdensome than what he will face at trial. The Court finds that complexity of the relevant

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legal issues and requirements for trial preparation in this case warrant the appointment of counsel.

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In light of Plaintiff’s likelihood of success on the merits and his diminishing ability to

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articulate his claims effectively as the case moves closer to trial and the legal issues grow more

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complex, the Court finds that exceptional circumstances exist to appoint counsel for Plaintiff

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pursuant to 28 U.S.C. § 1915(e).

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V.

CONCLUSION

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff Stephen R. J. Kern, Jr.’s Motion to Appoint

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Counsel, ECF No. 89, is GRANTED.
IT IS FURTHER ORDERED that this case shall be referred to the Pilot Pro Bono
Program for Plaintiff Kern to receive a general purpose appointment of counsel.
IT IS FURTHER ORDERED that Plaintiff’s counsel may request a referral to the
Magistrate Judge for the scheduling of a settlement conference.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Settlement [90] is DENIED

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without prejudice given the possible appointment of counsel. Plaintiff may renew his request for

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a referral to the magistrate for settlement if no counsel is appointed.

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IT IS FURTHER ORDERED that Defendant’s Motion for Clarification [92] is DENIED
without prejudice as moot given the Court’s order regarding the appointment of counsel.
IT IS FURTHER ORDERED that parties shall file a joint pretrial order within 90 days.

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DATED this 24th day of April, 2017.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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