Thompson v. Baca et al

Filing 103

ORDER - IT IS HEREBY ORDERED that Motion for Reconsideration (ECF No. 91 ) is GRANTED. The Clerk shall strike the Judgement (ECF No. 83 ). The Clerk shall reopen this case.IT IS FURTHER ORDERED that Motion for Appointment of Counsel (ECF No. 92 ) is DENIED.IT IS FURTHER ORDERED that Motion to Withdraw Response (ECF No. 96 ) is GRANTED. Defendants Response (ECF No. 94 ) shall be STRICKEN.IT IS FURTHER ORDERED that Motion to Extend Time (ECF No. 99 ) is GRANTED.IT IS FURTHER ORDERED that Motion to Extend Time (ECF No. 100 ) is GRANTED.IT IS FURTHER ORDERED that the parties shall appear for a status hearing via Zoom Videoconference on May 18, 2022 at 10:00 A.M., before Jud ge Robert C. Jones. (Status Conference set for 5/18/2022 at 10:00 AM before Judge Robert C. Jones.)IT IS FURTHER ORDERED that the parties are directed to contact the courtroom deputy Lesa Ettinger ([e-mail] or 775-686-5833) by Noon, Friday, May 13, 2022, to provide her the e-mail address of each counsel, party and/or representative attending the hearing.Signed by Judge Robert C. Jones on 5/4/2022. (Copies have been distributed pursuant to the NEF - CJD)

Case 3:17-cv-00670-RCJ-CSD Document 103 Filed 05/04/22 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID THOMPSON,
Plaintiff,

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vs.

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ISIDRO BACA, et al.,
Defendants.

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) CASE NO.: 3:17-cv-00670-RCJ
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ORDER
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Before the Court are five motions: Motion for Reconsideration (ECF No. 91), Motion for

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Appointment of Counsel (ECF No. 92), Motion to Withdraw a Duplicate Filing (ECF No. 96),

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Motion to Extend Time to File a Reply (ECF No. 99), and Motion to Extend Time to File a

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Response (ECF No. 100).

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This Court granted partial summary judgment, resolving this case except for a single claim

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alleging Defendants violated Plaintiff’s First Amendment rights based on a content-based ban on

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catalogs. Although this claim is still pending, the Judgment (ECF No. 83) mistakenly closed this

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case. Plaintiff moves to reconsider and to reopen this case. (ECF No. 91.) The Court liberally

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construes Plaintiff’s motion as one under Federal Rule of Civil Procedure 60(a), which allows this

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Court to “correct a clerical mistake.” 1 The Court grants this motion so construed and strikes the

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Plaintiff cited to Rule 60(b), which allows for reconsideration upon extraordinary circumstances,
such as fraud. Rule 60(b) is not applicable here.
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Case 3:17-cv-00670-RCJ-CSD Document 103 Filed 05/04/22 Page 2 of 4

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“Judgment” from the Docket as mistakenly entered. The case shall proceed on the remaining

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claim.

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Plaintiff moves for appointment of counsel under 28 U.S.C. § 1915(e)(1), which allows

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this Court to appoint “an attorney to represent any person unable to afford counsel.” A court should

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only grant such a motion for appointment of counsel where “exceptional circumstances” exist.

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United States v. 30.64 Acres of Land, 795 F.2d 796, 799–800 (9th Cir. 1986). The plaintiff bears

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the burden of proving “exceptional circumstances.” Terrell v. Brewer, 935 F. 2d. 1015, 1017 (9th

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Cir. 1991). For this inquiry, a court considers the likelihood of the plaintiff’s success on the merits

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and the pro se litigant’s ability to articulate his claims in light of the complexity of the legal issues

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involved. Id. After denying three previous requests for an attorney, (ECF Nos. 8, 18, 48), the Court

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again finds that appointment of counsel is inappropriate here. Plaintiff has repeatedly shown an

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ability to articulate his claims and has not shown a likelihood of success on the merits. The Court

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thus denies this motion.

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Defendants mistakenly filed its response to Plaintiff’s motion to reconsider twice. (ECF

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Nos. 93, 94.) They therefore move to withdraw the second errant filing. The Court grants this

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motion and strikes Defendants’ Response (ECF No. 94).
Both parties moved for extra time in briefing Plaintiff’s motions. (ECF Nos. 99, 100.)

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Neither party opposes the other. The Court thus grants these motions.
CONCLUSION

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IT IS HEREBY ORDERED that Motion for Reconsideration (ECF No. 91) is GRANTED.

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The Clerk shall strike the Judgement (ECF No. 83). The Clerk shall reopen this case.
IT IS FURTHER ORDERED that Motion for Appointment of Counsel (ECF No. 92) is

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DENIED.

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Case 3:17-cv-00670-RCJ-CSD Document 103 Filed 05/04/22 Page 3 of 4

IT IS FURTHER ORDERED that Motion to Withdraw Response (ECF No. 96) is

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GRANTED. Defendants’ Response (ECF No. 94) shall be STRICKEN.

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IT IS FURTHER ORDERED that Motion to Extend Time (ECF No. 99) is GRANTED.

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IT IS FURTHER ORDERED that Motion to Extend Time (ECF No. 100) is GRANTED.

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IT IS FURTHER ORDERED that the parties shall appear for a status hearing via Zoom

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Videoconference on May 18, 2022 at 10:00 A.M., before Judge Robert C. Jones.

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IT IS FURTHER ORDERED that the parties are directed to contact the courtroom deputy

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Lesa Ettinger ([e-mail] or 775-686-5833) by Noon, Friday, May 13,

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2022, to provide her the e-mail address of each counsel, party and/or representative attending the

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hearing.
IT IS FURTHER ORDERED that the following Video Conference Instructions be adhered

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to as follows:
INSTRUCTIONS FOR VIDEO CONFERENCE HEARING:

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Instructions to the scheduled hearings will be sent via email ONE (1) day prior to the

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hearing to the participants email provided to the Court.

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1. Log on to the call ten (10) minutes prior to the hearing time.

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2. Mute your sound prior to entering the hearing.

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3. Do not talk over one another.

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4. State your name prior to speaking for the record.

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5. Do not have others in the video screen or moving in the background.

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6. No recording of the hearing.

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7. No forwarding of any video conference invitations.

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8. Unauthorized users on the video conference will be removed.

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Case 3:17-cv-00670-RCJ-CSD Document 103 Filed 05/04/22 Page 4 of 4

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IT IS FURTHER ORDERED that the Public may access and listen to the Hearing as

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follows: Public telephonic participants shall call AT&T no later than five (5) minutes prior to the

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hearing at 1 [phone]. Access Code is 2900398 Security Code 051822.

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IT IS FURTHER ORDERED that persons granted remote access to proceedings are

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reminded of the general prohibition against photographing, recording, and rebroadcasting of court

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proceedings. Violation of these prohibitions may result in sanctions, including removal of court

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issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or

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any other sanctions deemed necessary by the court.

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IT IS SO ORDERED.
Dated May 4, 2022.

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_____________________________________
ROBERT C. JONES
United States District Judge

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