Vaughn v. Nash, et al

Filing 18

ORDER that this case is no longer subject to the screening requirements of 28 U.S.C. § 1915A and will proceed on the normal litigation track. It is further ordered that Plaintiff must perfect service within ninety (90) days from the date of this order., denying 12 Motion.; denying 16 Motion/Application for Leave to Proceed in forma pauperis. Signed by Judge Andrew P. Gordon on 6/27/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES VAUGHN,

Case No. 2:15-cv-02137-APG-PAL

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Plaintiff,

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ORDER

v.
WARDEN JENNIFER NASH et al.,

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Defendants.

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I.

DISCUSSION

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When Plaintiff initiated this case on November 6, 2015, Plaintiff was a prisoner in

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the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 1-1). At that

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time, Plaintiff filed an application to proceed in forma pauperis which the Court denied as

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incomplete. (ECF No. 1, 4). On December 14, 2015, Plaintiff filed a notice of change of

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address which indicated that Plaintiff had been released from prison. (ECF No. 5). On

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April 22, 2016, Plaintiff paid the full $400 filing fee for this action. (ECF No. 8). On

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September 13, 2016, the Court issued a screening order on the original complaint and

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dismissed the complaint its entirety for failure to state a claim. (ECF No. 14 at 6). The

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Court granted Plaintiff leave to amend. (Id.) On October 13, 2016, Plaintiff filed an

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amended complaint. (ECF No. 17).

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The Court finds that Plaintiff’s amended complaint is no longer subject to the

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screening requirement of 28 U.S.C. § 1915A because Plaintiff was no longer incarcerated

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when he filed the amended pleading. See Olivas v. Nevada ex rel. Dep't of Corr., 856

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F.3d 1281, 1284 (9th Cir. 2017) (holding that “a court may screen a complaint pursuant

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to 28 U.S.C. § 1915A only if, at the time the plaintiff files the complaint, he is ‘incarcerated

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or detained in any facility [because he] is accused of, convicted of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

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probation, pretrial release, or diversionary program’”). Additionally, Plaintiff is not subject

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to the screening requirement under 28 U.S.C. § 1915 because Plaintiff has paid the full

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filing fee for this action. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). As

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such, this case will now proceed on a normal litigation track pursuant to the Federal Rules

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of Civil Procedure.

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Plaintiff has also filed a motion for appointment of counsel. (ECF No. 12). A litigant

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

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claims. 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

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

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

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action). “When determining whether ‘exceptional circumstances’ exist, a court must

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consider ‘the likelihood of success on the merits as well as the ability of the petitioner to

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articulate his claims pro se in light of the complexity of the legal issues involved.” Id.

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“Neither of these considerations is dispositive and instead must be viewed together.” Id.

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In the instant case, the Court does not find exceptional circumstances that warrant the

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appointment of counsel. The Court denies the motion for appointment of counsel.

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II.

CONCLUSION

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For the foregoing reasons, it is ordered that this case is no longer subject to the

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screening requirements of 28 U.S.C. § 1915A and will proceed on the normal litigation

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track pursuant to the Federal Rules of Civil Procedure.

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It is further ordered that Plaintiff must perfect service within ninety (90) days from
the date of this order pursuant to Fed. R. Civ. P. 4(m).
It is further ordered that the motion for appointment of counsel (ECF No. 12) is

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denied.
It is further ordered that the application to proceed in forma pauperis (ECF No. 16)
is denied as moot because Plaintiff has paid the full filing fee for this case.
Dated: June 27, 2017.

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UNITED STATES DISTRICT JUDGE

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