Stewart v. Burns

Filing 28

ORDER Denying Plaintiff's 16 Motion to Setback Early MediationConference and Plaintiff's 17 Motion for Appointment of Counsel. Signed by Magistrate Judge Peggy A. Leen on 5/24/2018. (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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ROBERT EARL STEWART,

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v.

Case No. 2:16-cv-01764-APG-PAL
Plaintiff,

ORDER

WARDEN BURNS,

(Mot. Early Mediation Conf. – ECF No. 16;
Mot. for Appoint Counsel – ECF No. 17)

Defendants.

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This matter is before the court on Plaintiff Robert Earl Stewart’s (“Stewart”) Motion to

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Setback Early Mediation Conference (ECF No. 16) and Motion for Appointment of Counsel (ECF

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No. 17). These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and

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LR IB 1-3 of the Local Rules of Practice.

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BACKGROUND

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Stewart was a prisoner in the custody of the Nevada Department of Corrections (“NDOC”)

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when he filed his complaint in April 2017. He has since been released and is no longer

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incarcerated. This case arises from his allegations, pursuant to 28 U.S.C. § 1983, that defendant

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Warden Burns violated his civil rights. Stewart is proceeding in this action pro se, which means

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he is not represented by an attorney. See LSR 2-1. He has received permission to proceed in forma

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pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1. See IFP App. (ECF No. 1); Order

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(ECF No. 10).

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Upon review of the complaint for screening purposes, the court determined that it stated a

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plausible claim of unlawful imprisonment against Warden Burns based on the miscalculation of

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his restored good time credits. See Apr. 25, 2017 Screening Order (ECF No. 4). The court stayed

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

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Early Mediation Program before the filing of an answer or starting the discovery process. Id.; see
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also Order (ECF No. 7) (setting the mediation conference date). However, the parties did not

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reach a settlement during the mediation and the case was returned to the normal litigation track.

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See Mins. of Proceedings (ECF No. 8).

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The court therefore entered an Order (ECF No. 10) on July 26, 2017, directing electronic

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

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instructing that a notice be filed with the court indicating the names of the defendant(s) for whom

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the Attorney General accepts service, and those it does not. Id. If the Attorney General accepted

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service of process for any named defendant(s), such defendant(s) were instructed to file and serve

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an answer or other response to the complaint within 60 days.

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After the court entered the order directing service, Mr. Stewart filed several motions:

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Motion for Jury Trial (ECF No. 11), filed August 9, 2017; Motion for Copies (ECF No. 13), filed

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August 18, 2017; Motion to Setback to Early Mediation Conference (ECF No. 16) and Motion for

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Appointment of Counsel (ECF No. 17), both filed September 14, 2017. The district judge denied

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the motion for jury trial as premature to the extent the motion sought a trial date. Order (ECF

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No. 15). The undersigned magistrate judge denied the motion for copies because a Freedom of

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Information Act request must be addressed to a government agency having the records requested,

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and must be filed in accordance with applicable rules and regulations. Order (ECF No. 26).

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On August 16, 2017, the Attorney General accepted service on behalf of Defendant Harold

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Mike Byrne, erroneously sued as Warden Mr. Burns. See Notice Acceptance of Service (ECF

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No. 12). Defendant Byrne timely filed his Answer (ECF No. 18) on September 26, 2017.

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The court entered a Scheduling Order (ECF No. 19) on September 26, 2017, directing that

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discovery shall be completed by December 26, 2017. Id. ¶ 3(a). The Scheduling Order also

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provided deadlines to: (i) amend pleadings or join additional parties, November 24, 2017; (ii) file

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discovery motions, January 10, 2018; and (iii) file dispositive motions, February 9, 2018. See id.

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¶¶ 1–2, 5–6.
Currently pending before the district judge are Defendant Byrne’s Motion to Dismiss (ECF

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No. 20) and Motion for Summary Judgment (ECF No. 24).

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DISCUSSION

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I.

MOTION TO SETBACK EARLY MEDIATION CONFERENCE (ECF NO. 16)

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Mr. Stewart’s motion asks the court for a settlement. He states that the court “already said

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[his] civil rights were violated” and ordered the Attorney General to settle. But it did not attempt

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to do so. He asks that the court award him $2,757 from NDOC. He attaches a copy of the

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Screening Order (ECF No. 4) and Order (ECF No. 15) denying his motion for jury trial.

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Mr. Stewart has misinterpreted the purpose of the Screening Order and referral to the

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Inmate Early Mediation Program. A federal court is required to screen an IFP plaintiff’s complaint

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before allowing the case to move forward, issuing summonses, and requiring a responsive

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pleading. 28 U.S.C. § 1915; Jones v. Bock, 549 U.S. 199, 213–14 (2007). The court must conduct

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a preliminary screening in any case in which a prisoner seeks compensation from a governmental

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entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In screening the

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complaint, the court must identify any colorable claims and dismiss any claims that are frivolous,

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malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a

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defendant who is immune from such relief. 42 U.S.C. § 1997e (Prison Litigation Reform Act of

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1995 (PLRA)); 28 U.S.C. § 1915A(b).

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By finding that Stewart’s complaint stated a claim for unlawful imprisonment on which

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relief may be granted and allowing the case to proceed, the court did not find that Stewart’s civil

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rights were violated. Rather, the court found that Mr. Stewart’s allegations met the minimum

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pleading standards to allow his claim to proceed. As the Screening Order pointed out, when the

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court screens a complaint it must view the complaint allegations in the light most favorable to the

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plaintiff. ECF No. 4 at 2 (citing Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996)).

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Additionally, the referral to the Inmate Early Mediation Program did not require the

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Attorney General to settle Stewart’s claims. The Inmate Early Mediation Program was created in

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2009 to assist the court in the management of § 1983 inmate cases, which account for a large

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number of the civil cases in this district. The program has assisted litigants in resolving a

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significant percentage of the cases referred to mediation. The program is beneficial to litigants

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and the court in resolving cases at an early stage and saving all parties the burden of protracted
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litigation. However, not all cases are resolved through mediation and those cases are therefore

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returned to the normal litigation track. More importantly, the court has no authority to require any

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party to settle. Both sides are entitled to their day in court.

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Here, the Screening Order indicated that the 90-day stay and referral to Inmate Early

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Mediation Program would give the parties “an opportunity to settle their dispute before the

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$350.00 filing fee is paid, an answer is filed, or the discovery process begins.” ECF No. 14 at

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5:12–14 (emphasis added). Mr. Stewart was advised that “if the case does not settle, [he would]

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be required to pay the full $350.00 filing fee.” Id. at 6:1–2 (emphasis added). The parties

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participated in a mediation conference on July 14, 2017, but did not reach a settlement. See Mins.

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of Proceedings (ECF No. 8). No party was required to settle during the mediation conference.

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The case was properly returned to the normal litigation track.
The motion is therefore denied.

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II.

MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 17)

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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). Pursuant to 28 U.S.C. § 1915(e)(1),

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the court may ask an attorney to represent an IFP litigant. Id. This statute does not require that

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the court appoint counsel or authorize the court to direct payment for a litigant’s attorney’s fees, it

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merely allows the court to request that an attorney represent an indigent litigant on a pro bono

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basis. See Mallard v. United States Dist. Ct., 490 U.S. 296, 304–05 (1989); United States v. 30.64

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Acres of Land, 795 F.2d 796, 798–804 (9th Cir. 1986). The appointment of counsel is limited to

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cases presenting exceptional circumstances. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

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(9th Cir. 2004). The word “exceptional” is defined as “out of the ordinary course, unusual,” or

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“rare.” See Oxford English Dictionary (Oxford Univ. Press 2015). In deciding whether to appoint

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counsel, the court should consider: (1) the likelihood of success of the pro se party’s claims on the

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merits, and (2) the ability of the party to articulate claims pro se in light of the complexity of the

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legal issues involved. Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015).

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Stewart’s motion asks the court to appoint counsel because he has received permission to

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proceed IFP in this case and he asserts that he is unable to afford counsel. He claims the issues
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and procedural matters are too complex and beyond his abilities. Because he is incarcerated, he is

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unable to investigate, take depositions, or discover evidentiary materials on his own.1 Stewart

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feels that counsel would be better at presenting arguments before the court as the legal issues in

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this case are complex. He therefore requests that counsel be appointed.

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The court has considered the Motion and finds that Stewart has not established exceptional

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circumstances justifying the appointment of counsel. Stewart’s Complaint states a plausible

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unlawful imprisonment claim against Warden Burns. Based on the record, the court is unable to

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assess the likelihood of success of Stewart’s claim on its merits. However, the facts alleged and

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legal issues raised in this case are not especially complex. Since commencing this action, Stewart

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has submitted multiple motions to the court and discovery requests to the defendant. Thus, he has

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demonstrated sufficient ability to write and articulate his claims. Furthermore, Stewart is no longer

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incarcerated. The motion is denied.

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The court understands that it is difficult for pro se parties to litigate their claims and almost

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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. Stewart should familiarize himself with the

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Federal Rules of Civil Procedure, the Local Rules of Practice, and relevant case law as much as

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possible.2

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Accordingly,

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IT IS ORDERED: Plaintiff Robert Earl Stewart’s Motion to Setback Early Mediation

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Conference (ECF No. 16) and Motion for Appointment of Counsel (ECF No. 17) are DENIED.

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Dated this 24th day of May, 2018.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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Stewart was incarcerated at the time of the filing of this motion. He is no longer incarcerated.

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The Federal Rules of Civil Procedure may be accessed on the United States Courts website at:
http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure.
The Local Rules of Practice may be accessed from this court’s website at http://www.nvd.uscourts.gov/.

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