Wilson v. Cox et al

Filing 7

ORDER. IT IS ORDERED that 6 Motion to Appoint Counsel is GRANTED. IT IS FURTHER ORDERED that this action is STAYED for 90 days. IT IS FURTHER ORDERED that if the case does not settle, Plaintiff will be required to pay the full $350.00 fi ling fee. IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the inmate mediation program, that party shall file a "motion to exclude case from mediation" on or before 21 days from the date of this order. IT IS FURTHER ORDERED that the Clerk of the Court shall electronically SERVE a copy of this order and a copy of 4 amended complaint on the Office of the Attorney General of the State of Nevada, attention Kat Howe. IT IS FURTHER ORDERE D that the Attorney General's Office shall advise the Court within 21 days of the date of the entry of this order whether it will enter a limited notice of appearance. Signed by Judge James C. Mahan on 3/30/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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WILLIAM NOAH, et al.,
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Defendants.
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___________________________________ )

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I.

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STEVEN WILSON,

2:15-cv-00625-JCM-CWH
ORDER

DISCUSSION

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On February 12, 2016, the Court issued a screening order dismissing the retaliation

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claim and the Free Exercise and RLUIPA claim against defendant Oxborrow with leave to

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amend and allowing Plaintiff’s Free Exercise and RLUIPA claims against defendants Noah,

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Mix, and Wahl to proceed. (ECF No. 5 at 7). The Court granted Plaintiff 30 days from the date

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of that order to file an amended complaint curing the deficiencies of his retaliation claim and

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his RLUIPA and Free Exercise claim against defendant Oxborrow.

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specifically stated that if Plaintiff chose not to file an amended complaint, the action would

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proceed on the Free Exercise and RLUIPA claims against defendant Noah, Mix, and Wahl

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only. (Id.). Plaintiff has not filed an amended complaint. Pursuant to the screening order, this

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action shall proceed on the Free Exercise and RLUIPA claims against defendants Noah, Mix,

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and Wahl.

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II.

(Id.).

The Court

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff has filed a motion for appointment of counsel. (ECF No. 1-2). A litigant does

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not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims.

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C.

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§ 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford

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counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional

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circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When

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determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood

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of success on the merits as well as the ability of the petitioner to articulate his claims pro se

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in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is

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dispositive and instead must be viewed together.” Id. In the instant case, the Court does not

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find exceptional circumstances that warrant the appointment of counsel. The Court denies the

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motion for appointment of counsel.

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III.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that, pursuant to the Court’s screening

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order (ECF No. 5), this action shall proceed on the Free Exercise and RLUIPA claims against

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defendants Noah, Mix, and Wahl.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF No.
6) is DENIED.

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IT IS FURTHER ORDERED that given the nature of the claim(s) that the Court has

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permitted to proceed, this action is STAYED for ninety (90) days to allow Plaintiff and

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Defendant(s) an opportunity to settle their dispute before the $350.00 filing fee is paid, an

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answer is filed, or the discovery process begins. During this ninety-day stay period, no other

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pleadings or papers shall be filed in this case, and the parties shall not engage in any

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discovery. The Court will refer this case to the Court’s Inmate Early Mediation Program, and

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the Court will enter a subsequent order. Regardless, on or before ninety (90) days from the

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date this order is entered, the Office of the Attorney General shall file the report form attached

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to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is

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entered prior to the end of the 90-day stay. If the parties proceed with this action, the Court

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will then issue an order setting a date for Defendants to file an answer or other response.

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Following the filing of an answer, the Court will issue a scheduling order setting discovery and

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dispositive motion deadlines.
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IT IS FURTHER ORDERED that “settlement” may or may not include payment of

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money damages. It also may or may not include an agreement to resolve Plaintiff’s issues

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differently. A compromise agreement is one in which neither party is completely satisfied with

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the result, but both have given something up and both have obtained something in return.

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IT IS FURTHER ORDERED that if the case does not settle, Plaintiff will be required to

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pay the full $350.00 filing fee. This fee cannot be waived. If Plaintiff is allowed to proceed in

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forma pauperis, the fee will be paid in installments from his prison trust account. 28 U.S.C.

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§ 1915(b). If Plaintiff is not allowed to proceed in forma pauperis, the $350.00 will be due

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immediately.

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IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the

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inmate mediation program, that party shall file a “motion to exclude case from mediation” on

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or before twenty-one (21) days from the date of this order. The responding party shall have

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seven (7) days to file a response. No reply shall be filed. Thereafter, the Court will issue an

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order, set the matter for hearing, or both.

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IT IS FURTHER ORDERED that the Clerk of the Court shall electronically SERVE a

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copy of this order and a copy of Plaintiff’s amended complaint (ECF No. 4) on the Office of the

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Attorney General of the State of Nevada, attention Kat Howe.

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IT IS FURTHER ORDERED that the Attorney General’s Office shall advise the Court

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within twenty-one (21) days of the date of the entry of this order whether it will enter a limited

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notice of appearance on behalf of Defendants for the purpose of settlement. No defenses or

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objections, including lack of service, shall be waived as a result of the filing of the limited notice

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of appearance.

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DATED: This 30th day of March, 2016

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_________________________________
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEVEN WILSON,

)
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Plaintiff,
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v.
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WILLIAM NOAH, et al.,
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Defendants.
)
___________________________________ )

REPORT OF ATTORNEY GENERAL
RE: RESULTS OF 90-DAY STAY

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NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL SHALL FILE THIS FORM. THE

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INMATE PLAINTIFF SHALL NOT FILE THIS FORM.

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On ________________ [the date of the issuance of the screening order], the Court

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issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C.

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§ 1915A, and that certain specified claims in this case would proceed. The Court ordered the

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Office of the Attorney General of the State of Nevada to file a report ninety (90) days after the

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date of the entry of the Court’s screening order to indicate the status of the case at the end

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of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies.

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///
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REPORT FORM
[Identify which of the following two situations (identified in bold type) describes the case, and
follow the instructions corresponding to the proper statement.]
Situation One: Mediated Case: The case was assigned to mediation by a courtappointed mediator during the 90-day stay. [If this statement is accurate, check ONE of
the six statements below and fill in any additional information as required, then proceed to the
signature block.]
____ A mediation session with a court-appointed mediator was held on
_______________ [enter date], and as of this date, the parties have reached a
settlement (even if paperwork to memorialize the settlement remains to be
completed). (If this box is checked, the parties are on notice that they must
SEPARATELY file either a contemporaneous stipulation of dismissal or a motion
requesting that the Court continue the stay in the case until a specified date
upon which they will file a stipulation of dismissal.)
____ A mediation session with a court-appointed mediator was held on
________________ [enter date], and as of this date, the parties have not
reached a settlement. The Office of the Attorney General therefore informs the
Court of its intent to proceed with this action.
____ No mediation session with a court-appointed mediator was held during the 90day stay, but the parties have nevertheless settled the case. (If this box is
checked, the parties are on notice that they must SEPARATELY file a
contemporaneous stipulation of dismissal or a motion requesting that the Court
continue the stay in this case until a specified date upon which they will file a
stipulation of dismissal.)
____ No mediation session with a court-appointed mediator was held during the 90day stay, but one is currently scheduled for ________________ [enter date].
____ No mediation session with a court-appointed mediator was held during the 90day stay, and as of this date, no date certain has been scheduled for such a
session.
____ None of the above five statements describes the status of this case.
Contemporaneously with the filing of this report, the Office of the Attorney
General of the State of Nevada is filing a separate document detailing the status
of this case.
*****
Situation Two: Informal Settlement Discussions Case: The case was NOT assigned to
mediation with a court-appointed mediator during the 90-day stay; rather, the parties
were encouraged to engage in informal settlement negotiations. [If this statement is
accurate, check ONE of the four statements below and fill in any additional information as
required, then proceed to the signature block.]
____ The parties engaged in settlement discussions and as of this date, the parties
have reached a settlement (even if the paperwork to memorialize the settlement
remains to be completed). (If this box is checked, the parties are on notice that
they must SEPARATELY file either a contemporaneous stipulation of dismissal
or a motion requesting that the Court continue the stay in this case until a
specified date upon which they will file a stipulation of dismissal.)

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____ The parties engaged in settlement discussions and as of this date, the parties
have not reached a settlement. The Office of the Attorney General therefore
informs the Court of its intent to proceed with this action.
____ The parties have not engaged in settlement discussions and as of this date, the
parties have not reached a settlement. The Office of the Attorney General
therefore informs the Court of its intent to proceed with this action.
____ None of the above three statements fully describes the status of this case.
Contemporaneously with the filing of this report, the Office of the Attorney
General of the State of Nevada is filing a separate document detailing the status
of this case.
Submitted this _______ day of __________________, ______ by:
Attorney Name: ________________________
Print
Address:

_____________________________
Signature

________________________________

Phone:
________________________

________________________________

Email:
________________________

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