Newton v. Wintersteen et al

Filing 48

ORDER. IT IS ORDERED that Plaintiff Charles Newton's 9 Motion for Appointment of Counsel and 29 Motion for Mediation Conference are DENIED. Defendants' 46 Motion to Strike Plaintiff's Second Amended Complaint is GRANTED.The Clerk of the Court is instructed to STRIKE Plaintiff's 45 Second Amended Complaint from the docket. Signed by Magistrate Judge Peggy A. Leen on 8/9/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES NEWTON,

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v.

Case No. 2:16-cv-01705-RFB-PAL
Plaintiff,

ORDER

ANDREW WINTERSTEEN,

(Mot. – ECF No. )
Defendant.

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This matter is before the court on Plaintiff Charles Newton’s Motion for Appointment of

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Counsel (ECF No. 9) and Motion for Mediation Conference (ECF No. 29). Also before the court

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is Defendants’ Motion to Strike (ECF No. 46). These Motions are referred to the undersigned

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pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

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BACKGROUND

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

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Plaintiff has also received permission to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915 and LSR 1-1 of the Local Rules of Practice. See IFP Application (ECF No. 8); May 31,

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2017 Order (ECF No. 27).

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This case arises from Plaintiff’s allegations, pursuant to 28 U.S.C. § 1983, that lifetime

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supervision for convicted sex offenders is unconstitutional. In July 2016, Plaintiff commenced

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this action by filing an IFP application and a proposed complaint naming Defendants Andrew

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Wintersteen, Plaintiff’s parole officer, and the Nevada Parole Board.

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complaint, the court determined that Plaintiff’s claim regarding his lifetime supervision survived

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screening, but dismissed the remaining claims. See Screening Order (ECF No. 10). The court

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stayed the case for 90 days to allow the parties an opportunity to settle their dispute through the

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Inmate Early Mediation Program before the filing of an answer or starting the discovery process.
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Upon review of the

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Id. at 5; see also Mar. 31, 2017 Order (ECF No. 13) (setting inmate early mediation conference).

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The parties did not reach a settlement during the mediation session; thus, the court-appointed

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mediator returned this case to the normal litigation track. See Apr. 28, 2017 Mins. of Proceedings

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(ECF No. 16); Status Report (ECF No. 24).

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After Plaintiff filed the current case, he filed a second lawsuit in August 2016 alleging that

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lifetime supervision for convicted sex offenders is unconstitutional but he named different

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defendants, the State of Nevada and Attorney General Adam Paul Laxalt. See Newton v. State of

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Nevada, et al., 16-cv-1915-JAD-CWH. The presiding district judges agreed that the two cases are

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related and ordered consolidation. See May 17, 2017 Order (ECF No. 20).

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On May 31, 2017, the court entered an Order (ECF No. 27) directing electronic service of

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the Complaint on the Nevada Office of the Attorney General (“Attorney General”) and instructing

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that a notice be filed with the court indicating the names of the defendants for whom the Attorney

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General accepts service, and those it does not. Id. ¶¶ 4, 6. Plaintiff was also given leave to file an

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amended complaint. Id. ¶ 12. Plaintiff filed a First Amended Complaint (ECF No. 30) on June 6,

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2017, which narrowed the defendants to Wintersteen alone. On June 21, 2017, the Attorney

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General accepted service on behalf of Defendant Wintersteen. See Notice Acceptance of Service

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(ECF No. 35). Wintersteen filed an Answer (ECF No. 45) on July 31, 2017.
DISCUSSION

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I.

PLAINTIFF’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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Plaintiff’s Motion (ECF No. 9) asks the court to appoint counsel because his incarceration

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impedes his ability to litigate his case. Plaintiff has received permission to proceed IFP and he

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asserts that he is unable to afford counsel. He claims the substantive issues and procedural matters

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in this case are too complex for his comprehension and abilities. Counsel would assist Plaintiff in

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presenting his case and ease the court’s task of discerning the issues.

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Plaintiff has not established that exceptional circumstances exist to justify the appointment

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of counsel.

Plaintiff’s initial complaint alleged that lifetime supervision for convicted sex

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offenders is unconstitutional. The court determined that Plaintiff’s claim regarding his lifetime

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supervision survived screening. See Screening Order (ECF No. 10). Based on the record, the

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

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court finds that the facts alleged and legal issues raised may involve a constitutional challenge, but

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are not so complex that Plaintiff is unable to present his case. Since commencing this action,

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Plaintiff has submitted and numerous motions to the court. He has demonstrated sufficient ability

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to write and articulate his requests. The court appreciates that it is difficult for pro se parties to

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litigate their claims and that almost every pro se party would benefit from representation by

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counsel. However, the court cannot require counsel to accept representation on a pro bono basis,

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and the number of attorneys available to accept a pro bono appointment is very small. The motion

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is denied.

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II.

PLAINTIFF’S MOTION FOR MEDIATION CONFERENCE

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This Motion (ECF No. 29) asks the court to allow a second mediation session based on a

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new argument included in his amended complaint and the consolidation of his cases. Defendants

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did not respond to Plaintiff’s motion.

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The court created the Inmate Early Mediation Program to assist in the management of

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inmate civil rights cases. The court appoints attorneys to serve as impartial mediators who preside

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over mediations with inmate plaintiffs suing for constitutional violations related to their

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confinement pursuant to 42 U.S.C. § 1983. The core of Plaintiff’s allegations in this case present

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a legal question—whether lifetime supervision for convicted sex offenders violates his

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constitutional rights. Mediators assist the parties in arriving at a settlement or achieving a better

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understanding of the case, but they do not decide the merits of the parties’ legal arguments. It is

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not clear what Plaintiff expects would be accomplished from a second session. Pursuant to local

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practice the district judge will refer this case to me for a mandatory settlement conference after

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discovery has closed and any dispositive motions have been decided. Plaintiff’s request for a

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second mediation session is denied at this time.

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III.

DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT

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This Motion (ECF No. 46) asks the court to strike Plaintiff’s Second Amended Complaint

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(ECF No. 45) because Plaintiff failed to seek or obtain defendant’s consent or leave of the court

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to further amend his pleadings.

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Rule 15 provides that a party may amend a pleading once “as a matter of course” within

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21 days after serving it. Fed. R. Civ. P. 15(a)(1)(A). After that, a party may amend its pleading

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only by leave of the court or with the opposing party’s written consent. Fed. R. Civ. P. 15(a)(2).

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“It is well established that district courts have inherent power to control their docket.” Ready

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Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (quoting Atchison, Topeka &

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Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998); Hernandez v. City of El Monte,

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138 F.3d 393, 398 (9th Cir. 1998)). This includes the power to strike improperly filed items from

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the docket as a sanction for litigation misconduct. See, e.g., id. at 404–05; Lazy Y Ranch Ltd. v.

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Behrens, 546 F.3d 580, 586–87, 588 (9th Cir. 2008).
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Accordingly,

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IT IS ORDERED:

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1. Plaintiff Charles Newton’s Motion for Appointment of Counsel (ECF No. 9) and

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Motion for Mediation Conference (ECF No. 29)are DENIED.
2. Defendants’ Motion to Strike (ECF No. 46) Plaintiff’s Second Amended Complaint is
GRANTED.
3. The Clerk of the Court is instructed to STRIKE Plaintiff’s Second Amended
Complaint (ECF No. 45) from the docket.
Dated this 9th day of August, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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