Mkhitaryan v. County of Clark

Filing 8

ORDER. Accordingly, Plaintiff's motion for appointment of counsel (Docket No. 2 ) is hereby GRANTED. The Court APPOINTS the Federal Public Defender to represent Plaintiff in this matter. The Court INSTRUCTS the Clerk's Office to add the Federal Public Defender's Office to the service list in this matter and, further, to separately send this order to the Federal Public Defender's Office so that representation may begin immediately. In addition, Plaintiff's other pending motions (Docket Nos. 3 , 7 ) are DENIED without prejudice. Signed by Magistrate Judge Nancy J. Koppe on 8/30/2024. Attorney Rene Valladares for Sergey Mkhitaryan added. (Copies have been distributed pursuant to the NEF - RJDG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SERGEY MKHITARYAN,

Order

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v.

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COUNTY OF CLARK,

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Case No. 2:24-cv-00708-RFB-NJK

Plaintiff(s),

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[Docket Nos. 2, 3, 7]

Defendant(s).

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Plaintiff filed a notice of incompetency. See Docket No. 2.1

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Upon a finding of incompetence, courts are empowered to appoint a guardian ad litem or

13 to “issue another appropriate order.” Fed. R. Civ. P. 17(c). The Ninth Circuit has identified the
14 appointment of a lawyer as a potential remedy that is sufficient in appropriate cases to protect an
15 incompetent litigant’s interests. Davis v. Walker, 745 F.3d 1303, at 1311 (9th Cir. 2014) (citing
16 Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989)). In district courts, the appointment of
17 counsel for persons financially unable to obtain representation in criminal cases is governed by 18
18 U.S.C. § 3006A. “A person for whom counsel is appointed shall be represented at every stage of
19 the proceedings from his initial appearance before the United States magistrate judge or the court
20 through appeal, including ancillary matters appropriate to the proceedings.” 18 U.S.C. § 3006A(c).
21 Ancillary matters include proceedings sufficiently related to the underlying criminal case. See
22 United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir. 1987). Even when proceedings do not
23 constitute an ancillary matter, appointment of counsel is still proper where exceptional
24 circumstances exist. See Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1104 (9th Cir.
25 2004) (allowing court appointment of an attorney to represent a plaintiff in a civil action when
26 exceptional circumstances exist). The existence of exceptional circumstances entails an analysis
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The notice references Plaintiff’s “competency,” but read in context is construed as a
28 notice of incompetency.

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1 of the “likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability
2 to articulate his claims in light of the complexity of the legal issues involved.” Id. (internal citation
3 omitted).
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Plaintiff is an inmate in state custody awaiting trial on murder charges. See State of Nev.

5 v. Mkhitaryan, C-16-312769-1 (Eighth Judicial Dist. Ct.); State of Nev. v. Mkhitaryan, C-166 312718-1 (Eighth Judicial Dist. Ct.); see also Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir.
7 2011) (taking judicial notice of state court proceedings). The Court has elsewhere recognized a
8 finding of Plaintiff’s incompetency. See, e.g., Mkhitaryan v. Las Vegas Metro. Police Dept., No.
9 2:20-cv-02169-ART-NJK, Docket No. 30 at 2 (D. Nev. Apr. 20, 2022) (citing finding of
10 incompetency in relation to state court proceedings). Although not entirely clear, Plaintiff brings
11 this case in relation to his pretrial detention and those criminal proceedings. See Docket No. 1-1.
12 Given the circumstances of this case, the Court finds it appropriate to appoint counsel to represent
13 Plaintiff.
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Accordingly, Plaintiff’s motion for appointment of counsel (Docket No. 2) is hereby

15 GRANTED. The Court APPOINTS the Federal Public Defender to represent Plaintiff in this
16 matter. The Court INSTRUCTS the Clerk’s Office to add the Federal Public Defender’s Office
17 to the service list in this matter and, further, to separately send this order to the Federal Public
18 Defender’s Office so that representation may begin immediately. In addition, Plaintiff’s other
19 pending motions (Docket Nos. 3, 7) are DENIED without prejudice.
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IT IS SO ORDERED.

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Dated: August 30, 2024
______________________________
Nancy J. Koppe
United States Magistrate Judge

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