High v. NDOC ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Robert High, Case No. 2:23-cv-00847-APG-DJA 6 Plaintiff, 7 Order v. 8 NDOC, et al., 9 Defendants. 10 11 Before the Court is pro se Plaintiff Robert High’s emergency motion for appointment of 12 counsel (ECF No. 22) and his motion requesting issuance of summons (ECF No. 27). Because 13 the Court finds that Plaintiff has not demonstrated exceptional circumstances, the Court denies his 14 motion for appointment of counsel without prejudice. Because the Court finds that Plaintiff’s 15 motion for summonses is premature, the Court denies it. 16 I. Motion for appointment of counsel. 17 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 18 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Under 28 U.S.C. 19 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford 20 counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional 21 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When 22 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 23 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 24 of the complexity of the legal issues involved.’” Id. “Neither of these considerations is 25 dispositive and instead must be viewed together.” Id. 26 The Court denies Plaintiff’s motion because it does not find that he has demonstrated 27 exceptional circumstances. Plaintiff asserts that part of the basis for his case is the prison’s denial 1 Prison law library. However, while the Court recognizes the gravity of Plaintiff’s allegations, his 2 case is not unlike those of other incarcerated litigants. Additionally, Plaintiff has not explained 3 why he has no access to the law library or what alternative access he may or may not have. 4 Ultimately, it is unclear if Plaintiff’s case will succeed on the merits because it is in its 5 very early stages, having just begun proceeding after the parties’ settlement efforts. Plaintiff has 6 also demonstrated an ability to articulate his claims pro se as demonstrated by the instant motion 7 and his other filings, despite his stated lack of access to the law library. The Court thus denies 8 Plaintiff’s motion for appointment of counsel without prejudice. 9 II. Motion for summons. 10 Plaintiff moves the Court to order service on three Defendants for whom the Office of the 11 Attorney General (“OAG”) could not accept service. (ECF No. 27). The first of these 12 Defendants is Dr. Mirit Avram. However, this Defendant has already accepted service. (ECF 13 No. 26). So, the Court denies Plaintiff’s motion as to this Defendant as moot. 14 The other two Defendants are individuals who Plaintiff previously named as John Doe 15 Medical Director and John Doe Director of Nursing.1 The OAG explained that it could not 16 identify these individuals and thus could not accept service on their behalf. (ECF No. 25). In his 17 motion, Plaintiff identifies John Doe Medical Director as Dr. Kenneth Williams and identifies 18 John Doe Director of Nursing as Nurse Ryan. Plaintiff asks the Court to issue summonses to 19 these Defendants. 20 However, because these Defendants are not named in the complaint, they cannot be served 21 with process. Corry v. Alameda County Sheriff’s Office, No. C-12-5152 EMC (pr), 2013 WL 22 550669, at *1 (N.D. Cal. Feb. 12, 2013). Plaintiff must first move to amend his complaint to 23 include the names of Dr. Kenneth Williams and Nurse Ryan in place of John Doe Medical 24 Director and John Doe Director of Nursing. The Court thus denies Plaintiff’s motion for issuance 25 of summons as premature. 26 27 1 Plaintiff identified two John Doe Directors of Nursing in his complaint, but only names one in 1 IT IS THEREFORE ORDERED that Plaintiff’s motion for appointment of counsel 2 (ECF No. 22) is denied without prejudice. 3 IT IS FURTHER ORDERED that Plaintiff’s motion requesting issuance of summons 4 (ECF No. 27) is denied as moot regarding Dr. Avram and premature as to Dr. Kenneth Williams 5 and Nurse Ryan. 6 7 DATED: October 29, 2024 8 DANIEL J. ALBREGTS 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27