Rasavong v. Ruiz et al

Filing 39

ORDER that 26 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk of the Court shall electronically SERVE a copy of this order and a copy of Plaintiff's second amended complaint (ECF No. 25 ) on the Office of th e Attorney General of the State of Nevada, by adding the Attorney General of the State of Nevada to the docket sheet. This does not indicate acceptance of service. Service must be perfected within ninety (90) days from the date of this order. Subjec t to the findings of the screening order and follow-up order (ECF No. 24 , 29 ), within twenty-one (21) days of the date of entry of this order, the Attorney General's Office shall file a notice advising the Court and Plaintiff of: (a) the na mes of the defendants for whom it accepts s ervice; (b) the names of the defendants for whom it does not accept service, and (c) the names of the defendants for whom it is filing the last-known-address information under seal. If the Attorney General accepts service of process for any named defendant(s), such defendant(s) shall file and serve an answer or other response to the complaint within sixty (60) days from the date of this order. This case is no longer stayed. Further ordered that 37 Motion for Appointment of Counsel is denied. Signed by Magistrate Judge George Foley, Jr on 6/28/2018. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

NOUANSAVANH RASAVONG,

10

Plaintiff,

11
12

Case No. 2:16-cv-01121-JAD-GWF
ORDER

v.
J. RUIZ et al.,

13

Defendants.

14
15

This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by

16

a former state prisoner. In compliance with this Court’s order, Plaintiff has submitted an

17

application to proceed in district court without prepaying fees or costs following his release

18

from prison. (ECF No. 26). Based on the financial information provided, the Court grants

19

Plaintiff leave to proceed without prepayment of fees or costs pursuant to 28 U.S.C.

20

§ 1915(a)(1).1

21

On February 5, 2018, the Court entered a screening order. (ECF No. 24). A follow-

22

up order imposed a 90-day stay and the Court entered a subsequent order assigning the

23

case to mediation by a court-appointed mediator. (ECF No. 29, 31). The Office of the

24

Attorney General has filed a status report indicating that settlement was not reached and

25

informing the Court of its intent to proceed with this action. (ECF No. 38).
Plaintiff has filed a motion for appointment of counsel. (ECF No. 37). A litigant

26
27
1

28

Plaintiff is not subject to the requirements of 28 U.S.C. § 1915(a)(2), (b) because he is
no longer a “prisoner” within the meaning of the statute. See 28 U.S.C. § 1915(h).

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

IT IS THEREFORE ORDERED that:

13

1.

14
15

Plaintiff’s application to proceed in district court without prepaying fees or

costs (ECF No. 26) is GRANTED.
2.

Plaintiff is permitted to maintain this action to conclusion without the

16

necessity of prepayment of any additional fees or costs or the giving of security therefor.

17

This order granting leave to proceed in district court without prepaying fees or costs shall

18

not extend to the issuance and/or service of subpoenas at government expense.

19

3.

The Clerk of the Court shall electronically SERVE a copy of this order and

20

a copy of Plaintiff’s second amended complaint (ECF No. 25) on the Office of the Attorney

21

General of the State of Nevada, by adding the Attorney General of the State of Nevada

22

to the docket sheet. This does not indicate acceptance of service.

23
24
25

4.

Service must be perfected within ninety (90) days from the date of this order

pursuant to Fed. R. Civ. P. 4(m).
5.

Subject to the findings of the screening order and follow-up order (ECF No.

26

24, 29), within twenty-one (21) days of the date of entry of this order, the Attorney

27

-2-

28

1

General’s Office shall file a notice advising the Court and Plaintiff of: (a) the names of the

2

defendants for whom it accepts service; (b) the names of the defendants for whom it does

3

not accept service, and (c) the names of the defendants for whom it is filing the last-

4

known-address information under seal. As to any of the named defendants for whom the

5

Attorney General’s Office cannot accept service, the Office shall file, under seal, but shall

6

not serve the inmate Plaintiff the last known address(es) of those defendant(s) for whom

7

it has such information. If the last known address of the defendant(s) is a post office box,

8

the Attorney General's Office shall attempt to obtain and provide the last known physical

9

address(es).

10

6.

If service cannot be accepted for any of the named defendant(s), Plaintiff

11

shall file a motion identifying the unserved defendant(s), requesting issuance of a

12

summons, and specifying a full name and address for the defendant(s).

13

defendant(s) as to which the Attorney General has not provided last-known-address

14

information, Plaintiff shall provide the full name and address for the defendant(s).

15

7.

For the

If the Attorney General accepts service of process for any named

16

defendant(s), such defendant(s) shall file and serve an answer or other response to the

17

complaint within sixty (60) days from the date of this order.

18

8.

Henceforth, Plaintiff shall serve upon defendant(s) or, if an appearance has

19

been entered by counsel, upon their attorney(s), a copy of every pleading, motion or other

20

document submitted for consideration by the Court. Plaintiff shall include with the original

21

document submitted for filing a certificate stating the date that a true and correct copy of

22

the document was mailed or electronically filed to the defendants or counsel for the

23

defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service

24

to the individual attorney named in the notice of appearance, at the physical or electronic

25

address stated therein. The Court may disregard any document received by a district

26

judge or magistrate judge which has not been filed with the Clerk, and any document

27

-3-

28

1

received by a district judge, magistrate judge, or the Clerk which fails to include a

2

certificate showing proper service.

3

9.

4

10.

This case is no longer stayed.
The motion for appointment of counsel (ECF No. 37) is denied.

5
6

28th
DATED THIS ____ day of June 2018.

7
8

UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-