Pattison v. The State of Nevada, Ex Rel, Nevada Department of Corrections et al

Filing 144

ORDER denying Plaintiff's 85 , 105 , and 106 Motions for Reconsideration; denying as moot Plaintiff's 112 Motion to Extend Time. Signed by Judge Miranda M. Du on 7/31/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANTE PATTISON,

Case No. 3:14-cv-00020-MMD-VPC
Plaintiff,

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ORDER

v.
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STATE OF NEVADA, et al.,
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Defendants.
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I.

SUMMARY

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In separate orders, United States Magistrate Judge Valerie P. Cooke resolved

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certain pretrial issues, including denial of Plaintiff’s motion for appointment of counsel,

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denial of Plaintiff’s request to stay his deposition and denial of his request for waiver of

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all fees relating to depositions. (Dkt. nos. 82, 103.) Plaintiff has moved for

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reconsideration by the undersigned. (Dkt. nos. 85, 105, 106.) For the reasons discussed

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herein, Plaintiff’s motions are denied.

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II.

STANDARD OF REVIEW

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Magistrate judges are authorized to resolve pretrial matters subject to district

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court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. §

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636(b)(1)(A); see also Fed. R. Civ. P. 72(a); L.R. IB 3-1(a) (“A district judge may

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reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case

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pursuant to LR IB 1-3, where it has been shown that the magistrate judge’s ruling is

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clearly erroneous or contrary to law.”). “This subsection would also enable the court to

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delegate some of the more administrative functions to a magistrate judge, such as . . .

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assistance in the preparation of plans to achieve prompt disposition of cases in the

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court.” Gomez v. United States, 490 U.S. 858, 869 (1989). “A finding is clearly erroneous

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when although there is evidence to support it, the reviewing body on the entire evidence

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is left with the definite and firm conviction that a mistake has been committed.” United

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States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). A magistrate

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judge’s pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject to de novo

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review, and the reviewing court “may not simply substitute its judgment for that of the

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deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir.

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1991).

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III.

DISCUSSION

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A.

Appointment of Counsel (dkt. no. 85)

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As an initial matter, the Court will address Plaintiff’s motion for an extension of

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time to file a reply in support of his motion for reconsideration relating to denial of his

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request for appointment of counsel. (Dkt. no. 112.) Local Rule IB 3-1(a) only permits an

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objection and a response; it does not provide for the filing of a reply.1 The Court will

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therefore not entertain a reply. Plaintiff’s motion for extension of time (dkt. no. 112) is

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denied as moot.

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Plaintiff challenges the Magistrate Judge’s decision to deny his motion for

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appointment of counsel. (Dkt. no. 85.) Generally, a person has no right to counsel in civil

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actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the

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Court is able to request an attorney for a plaintiff proceeding in forma pauperis. 28

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U.S.C. § 1915(e)(1). While Plaintiff moved for counsel to be appointed, the Court’s

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authority is limited to requesting counsel for Plaintiff. Under LR IB 3-1, 28 U.S.C. §

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636(b) and Rule 72, the Court may reconsider a Magistrate Judge’s pre-trial order where

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The electronic filing system automatically generates a reply due date depending
on the type of response that the filing party selects. Here, the system generated a notice
with a reply due date when Defendants filed their response to Plaintiff’s motion. (Dkt. no.
102.) However, such notice does not give a party the right to file the referenced
document when that right is not provided for under LR IB 3-1(a).
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the order is timely objected to and clearly erroneous or contrary to law. The Court

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reviews the Magistrate Judge’s order de novo but recognizes that the decision to refuse

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to request counsel pursuant to 28 U.S.C. § 1915(e)(1) is discretionary. See Campbell v.

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Burt, 141 F.3d 927, 931 (9th Cir.1998).

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The Court may only request counsel in exceptional circumstances. Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). In order to determine whether exceptional

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circumstances exist, the Court must consider “‘the likelihood of success on the merits’”

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as well as the ability of the plaintiff to articulate his arguments “‘in light of the complexity

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of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

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(citation omitted). Neither of these considerations is dispositive and the Court must

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examine them together. Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986).

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Plaintiff argues that he has demonstrated extraordinary circumstances to warrant

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appointment of counsel based on his long history of mental illness which qualifies him as

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disabled under the Americans with Disabilities Act, his claim that he is the “victim of very

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powerful political foes,” the nature and complexities of his claims and the difficulty of

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conducting and responding to discovery.2 (Dkt. no. 85 at 1-2, 5-6.)

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The Magistrate Judge found that the circumstances of this case do not meet the

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exceptional circumstances requirement for appointment of counsel. (Dkt. no. 82 at 1-2.)

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The Magistrate Judge further observed that Plaintiff has shown he is able to litigate this

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case on his own. The Court agrees with the Magistrate Judge. Plaintiff’s filings, including

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his objections, demonstrate that he is able to clearly articulate his claims and arguments.

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Moreover, while Plaintiff has two claims under the First Amendment and the Eighth

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Amendment that have survived the screening, he has not sufficiently demonstrated that

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Plaintiff offers a copy of a neuropsychological assessment prepared in 2003 and
amended on 2004 as support for his claim of mental illness. (Dkt. no. 85-1, Exh. A.) At
that time, Plaintiff was diagnosed as having “Schizophrenia, Paranoid type, chronic with
features of Capgras Syndrome.” (Dkt. no. 85-1 at 27.)
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these claims are likely to succeed. The Court therefore declines to reconsider the

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Magistrate Judge’s order denying Plaintiff’s’ motion for appointment of counsel.
Stay of Plaintiff’s Deposition (dkt. no. 105)

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B.

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Plaintiff contends that the Magistrate Judge granted Defendants’ motion to take

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his deposition without considering his response. The Magistrate Judge issued an order

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granting the motion for leave to take Plaintiff’s deposition on the same day his response

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was due. (Dkt. no. 80.) As the Magistrate Judge indicated, these types of motions are

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routinely granted without briefing. (Dkt. no. 103 at 1.) Defendants have a right to depose

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Plaintiff as the party initiating this action and Plaintiff cannot avoid being deposed. (Id.)

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Plaintiff has not demonstrated that the Magistrate Judge’s decision is clearly erroneous

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or contrary to law.

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C.

Deposition Fees (dkt. no. 106)

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Plaintiff appears to argue that because he was allowed to proceed in forma

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pauperis in state court before this action was removed, his in forma pauperis status

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should entitle him to a waiver of fees relating to depositions. However, as the Magistrate

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Judge correctly noted in citing to Local Special Rule 1-8, “even assuming arguendo that

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plaintiff could be considered in forma pauperis, an order granting in forma pauperis

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status does not extend to the expenses of litigation.” (Dkt. no. 103 at 1.) Moreover,

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Plaintiff’s request for waiver of deposition fees is not authorized under 28 U.S.C. § 1915.

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See Tedder v. Odol, 890 F.2d 210, 211 (9th Cir. 1989) (agreeing with other circuits in

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finding that section 1915 does not permit waiver of witness fees) (citations omitted).

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IV.

CONCLUSION

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It is therefore ordered that Plaintiff’s motions for reconsideration (dkt. nos. 85,

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105, 106) are denied. It is further ordered that Plaintiff’s motion for extension of time (dkt.

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no. 112) is denied as moot.

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DATED THIS 31st day of July 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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