Cranford v. State of Nevada, et al

Filing 33

ORDER Denying without prejudice Plaintiff's 24 Motion to Appoint Counsel and Granting Defendants' 27 Motion for Issuance of Scheduling Order. A separate scheduling order will be issued. Signed by Magistrate Judge Peggy A. Leen on 4/24/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DUKE F. CRANFORD,

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v.

Case No. 2:15-cv-02189-GMN-PAL
Plaintiff,

ORDER

E.K. McDANIEL, et al.,

(Mot. Appt. Counsel – ECF No. 24;
Mot. Scheduling Order – ECF No. 27)

Defendants.

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This matter is before the court on Plaintiff Duke K. Cranford’s Motion for Appointment of

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Counsel (ECF No. 24) and Defendants’ Motion for Issuance of Scheduling Order (ECF No. 27).

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These motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-

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3 of the Local Rules of Practice. The court has considered the motions. No response was filed for

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either motion and the deadline to do so has now expired.

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BACKGROUND

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Mr. Cranford is a pro se prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”) at the Northern Nevada Correctional Center. He has received permission to proceed

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in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of

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Practice. See Order (ECF No. 19).

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On November 18, 2015, Mr. Cranford commenced this action by filing an IFP Application

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(ECF No. 1) and complaint. Upon initial review of the complaint, the court issued an Order (ECF

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No. 6) instructing him to file an amended complaint to correct certain defects in his pleading. Once

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he did so, see Second Am. Compl. (ECF No. 11), the court issued a Screening Order (ECF No. 13)

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finding that Cranford stated a plausible Eighth Amendment claim of deliberate indifference to a

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serious medical need against Defendants E.K. McDaniels, Romeo Aranas, B. Stroud, Dr. Leaks,

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and nurse Molly.
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This case arises from Mr. Cranford’s allegations, pursuant to 28 U.S.C. § 1983, regarding

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his treatment while he was incarcerated at the High Desert State Prison (“HDSP”). He alleges that

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he woke up with a foreign object lodged in his left eye on November 1, 2015. See Second Am.

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Compl. (ECF No. 11); Screening Order (ECF No. 13). The next day, nurse Molly examined his

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eye but she was unable to remove the object because she did not have the necessary equipment.

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Cranford filed an emergency grievance and complained to prison administrators about the

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condition of his left eye. His requests for medical care went unresolved and the object is still in

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his eye. Mr. Cranford continues to endure unreasonable pain and suffering, and he claims that his

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vision in his left eye has been irreversibly damaged.

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The court stayed the case for 90 days to allow the parties an opportunity to settle their

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dispute through the Inmate Early Mediation Program before the filing of an answer or starting the

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discovery process. See Screening Order (ECF No. 13); Order (ECF No. 15). However, the parties

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did not reach a settlement and the case was returned to the normal litigation track. See Mins. of

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Proceedings (ECF No. 16). The court therefore entered an Order (ECF No. 19) directing electronic

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service of the Second Amended Complaint on the Nevada Office of the Attorney General

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(“Attorney General”) and instructing that a notice be filed with the court indicating the names of

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the defendants for whom the Attorney General accepts service, and those it does not. Id. ¶ 5.

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On December 9, 2016, the Attorney General accepted service on behalf of Defendants E.K.

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McDaniels, Romeo Aranas, and Bruce Stroud (the “NDOC Defendants”). See Notice Acceptance

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of Service (ECF No. 20). However, service was not accepted for Defendant Molly Chiello, which

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prompted the Attorney General to file Chiello’s last known address under seal. See Sealed

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Submission of Last Known Address (ECF No. 21); Notice of Sealed Submission of Last Known

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Address (ECF No. 22). The NDOC Defendants filed their Answer (ECF No. 23) to the Second

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Amended Complaint on January 17, 2017.
DISCUSSION

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I.

MR. CRANFORD’S MOTION FOR APPOINTMENT OF COUNSEL

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A litigant in a civil rights action does not have a Sixth Amendment right to appointed

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counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654
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F.2d 1349, 1353 (9th Cir. 1981)); Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). Pursuant

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to 28 U.S.C. § 1915(e)(1), the court may ask an attorney to represent a litigant proceeding in forma

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pauperis. Id. This statute does not require that the court appoint counsel or authorize the court to

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direct payment for a litigant’s attorney’s fees, it merely allows the court to request that an attorney

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represent an indigent litigant on a pro bono basis. See Mallard v. United States Dist. Ct., 490 U.S.

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296, 304–05 (1989); United States v. 30.64 Acres of Land, 795 F.2d 796, 798–804 (9th Cir. 1986).

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The appointment of counsel is limited to cases presenting exceptional circumstances.

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Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); Aldabe v. Aldabe, 616 F.2d

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1089, 1093 (9th Cir. 1980) (per curiam). The word “exceptional” is defined as “out of the ordinary

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course, unusual,” or “rare.” See Oxford English Dictionary (Oxford Univ. Press 2015). In

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deciding whether to appoint counsel, the court should consider: (1) the likelihood of success of the

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pro se party’s claims on the merits, and (2) the ability of the party to articulate claims pro se in

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light of the complexity of the legal issues involved. Harrington v. Scribner, 785 F.3d 1299, 1309

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(9th Cir. 2015); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (finding that

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neither factor is controlling); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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Mr. Cranford’s motion asks the court to appoint counsel because he is not an attorney, he

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is 63 years old, and his eye sight is failing. Without court-appointed counsel to represent him,

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Cranford states that defendants will have an unfair advantage due to the foreign object that remains

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in his left eye. Thus, he argues that the appointment of counsel is in the interests of justice.

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Here, Mr. Cranford has not established that exceptional circumstances exist to justify the

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appointment of counsel. The Second Amended Complaint states a colorable Eighth Amendment

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claim against the NDOC Defendants as well as defendants Chiello and Dr. Leaks. Based on the

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record, the court is unable to assess the likelihood of success of Cranford’s claim on its merits.

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However, the court finds that the facts alleged and legal issues raised are not especially complex.

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Since commencing this action, Mr. Cranford has submitted numerous motions to the court.

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Despite his medical condition, he has demonstrated sufficient ability to write and articulate his

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claims. The court appreciates that it is difficult for pro se parties to litigate their claims and that

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almost every pro se party would benefit from representation by counsel. However, the court cannot
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require counsel to accept representation on a pro bono basis, and the number of attorneys available

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to accept a pro bono appointment is very small. The motion is therefore denied.

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II.

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NDOC DEFENDANTS’ MOTION FOR SCHEDULING ORDER
This motion asks the court to issue a scheduling order to commence discovery in this case.

Pursuant to LR 16-1, this request is granted and a separate scheduling order will be issued.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff Duke K. Cranford’s Motion for Appointment of Counsel (ECF No. 24) is

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DENIED without prejudice.
2. Defendants’ Motion for Issuance of Scheduling Order (ECF No. 27) is GRANTED. A
separate scheduling order will be issued.
Dated this 24th day of April, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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