Mizzoni v. State of Nevada ex rel. Nevada Department of Corrections et al

Filing 52

ORDER DENYING 45 Motion to Appoint Counsel. Clerk shall file and electronically serve this order, the screening order, and Plaintiff's complaint on the NV AG's office, attn Kat Howe (service completed 6/25/13). AG to advise court withi n 21 days regarding service (see order for instructions on service). Answer due within 60 days for any defendants represented. Plaintiff shall serve defendants copy of all pleadings. Henceforth, Plaintiff to serve defendants copy of every pleading, motion, or document submitted for consideration by the court. Plaintiff shall include with original paper submitted for filing a certificate of mailing. See order for further details. Signed by Judge Larry R. Hicks on 06/24/2013. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

JOSEPH L. MIZZONI,

10
Plaintiff,
11
vs.
12
STATE OF NEVADA, et al.,
13
Defendants.
14
15
16

)
)
)
)
)
)
)
)
)
)
/

3:11-cv-00186-LRH-WGC
ORDER

This is an action on a civil rights complaint pursuant to 42 U.S.C. § 1983, removed from state
court.

17

The court first considers plaintiff’s motion for appointment of counsel (ECF #45). Defendants

18

opposed (ECF #49). A litigant in a civil rights action does not have a Sixth Amendment right to

19

appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very limited

20

circumstances, federal courts are empowered to request an attorney to represent an indigent civil litigant.

21

The circumstances in which a court will make such a request, however, are exceedingly rare, and the

22

court will make the request under only extraordinary circumstances. United States v. 30.64 Acres of

23

Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

24

1986).

25

A finding of such exceptional circumstances requires that the court evaluate both the likelihood

26

of success on the merits and the plaintiff’s ability to articulate his claims in pro se in light of the

27

complexity of the legal issues involved. Neither factor is dispositive, and both must be viewed together

28

in making a finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn, supra, 789

1

F.2d at 1331). The district court has considerable discretion in making these findings.

2

Here, plaintiff argues that due to recent cataract surgery he has difficulty reading and writing

3

(ECF #45). Defendants counter that with a physician’s note plaintiff can obtain the necessary assistance

4

at the law library from inmate law clerks and the law librarian (ECF #49). Plaintiff did not file a reply

5

to defendants’ opposition. The court will not enter an order directing the appointment of counsel at this

6

time. Subsequent to this motion, plaintiff participated in an Early Inmate Mediation Conference to

7

explore settlement of this case. The record does not reflect–nor has plaintiff filed any motion to this

8

effect–that plaintiff continues to have problems reading and writing to the extent that he is unable to

9

litigate this case, even with the assistance of the law library and inmate law clerks. Further, plaintiff has

10

thus far demonstrated his ability to articulate his claims in pro se, and the issues do not appear to be

11

complex. Plaintiff’s motion for the appointment of counsel is denied without prejudice to plaintiff filing

12

a new motion for appointment of counsel if in fact he continues to suffer effects from his cataract surgery

13

that make it impossible for him to litigate this matter, even with law library assistance.

14
15

Next, the amended complaint was previously screened by the court (ECF #42). The matter shall
now proceed.

16

IT IS ORDERED as follows:

17

1.

The Clerk shall electronically SERVE a copy of this order, the court’s screening order

18

(ECF #42) and a copy of plaintiff’s complaint on the Office of the Attorney General of

19

the State of Nevada, attention Kat Howe.

20

2.

Subject to the findings of the Screening Order, within twenty-one (21) days of the date

21

of the entry of this order, the Attorney General’s Office shall file a notice advising the

22

court and plaintiff of: (a) the names of the defendants for whom it accepts service; (b)

23

the names of the defendants for whom it does not accept service; and © the names of the

24

defendants for whom it is filing last-known-address information under seal. As to any

25

of the named defendants for whom the Attorney General’s Office cannot accept service,

26

the Office shall file, under seal, the last known address(es) of those defendant(s) for

27

whom it has such information.

28

3.

If service cannot be accepted for any of the named defendant(s), plaintiff shall file a
2

1

motion identifying the unserved defendant(s), requesting issuance of a summons, and

2

specifying a full name and address for the defendant(s). As to any of the defendants for

3

whom the Attorney General has not provided last-known-address information, plaintiff

4

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

5

4.

If the Attorney General accepts service of process for any named defendant(s), such

6

defendant(s) shall file and serve an answer or other response to the complaint within

7

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

8

5.

Henceforth, plaintiff shall serve upon defendant(s) or, if an appearance has been entered

9

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

10

submitted for consideration by the court. Plaintiff shall include with the original paper

11

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

12

document was mailed to the defendants or counsel for the defendants. If counsel has

13

entered a notice of appearance, the plaintiff shall direct service to the individual attorney

14

named in the notice of appearance, at the address stated therein. The court may disregard

15

any paper received by a district judge or magistrate judge which has not been filed with

16

the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk

17

which fails to include a certificate showing proper service.

18

IT IS SO ORDERED.

19

DATED this 24th day of June, 2013.

20
21

___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
3