1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:17-cv-00228-MMD-CSD KEITH A. WARREN, 4 Order Plaintiff 5 Re: ECF Nos. 291, 292 v. 6 NEVADA DEPARTMENT OF 7 CORRECTIONS, et al.,

8 Defendants

9 Plaintiff has filed a motion to have inmate Jack Albert Patterson appointed as Plaintiff’s 10 attorney-in-fact. (ECF No. 291.) Defendants opposed this motion. (ECF No. 297.) Plaintiff has 11 also filed a motion for appointment of counsel. (ECF No. 292.) 12 I. Motion for Appointment of Jack Albert Patterson as Attorney-in-Fact 13 Plaintiff asserts that prison officials have intentionally moved Plaintiff away from the 14 inmate, Jack Albert Patterson, who was assisting him in litigating this case. As a result, Plaintiff 15 requests the court appoint Patterson as his attorney-in-fact. Plaintiff references Nevada 16 Department of Corrections’ (NDOC) Administrative Regulation (AR) 722.04. 17 In a court in Nevada, only a licensed attorney who is an active member of the State Bar 18 of Nevada is authorized to represent a client. Guerin v. Guerin,

,

, 19 1258 (Nev. 2000) (citing N.R.S. 7.285); see also SCR 77. An individual engages in the 20 unauthorized practice of law when he engages in activities customarily performed by licensed 21 attorneys. In re Discipline of Lerner,

(Nev. 2008). A search for Jack Albert 22 Patterson through the Nevada State Bar’s website did not yield any results. Therefore, the court 23 cannot appoint Mr. Patterson as an attorney-in-fact. 1 AR 722.04 provides, among other things, that inmates may obtain assistance from 2 institutional library assistants. The AR further provides that inmates may assist each other in the 3 preparation of legal documents and may act as “Counsel Substitutes” under NDOC policies. 4 When an inmate other than an inmate library assistant is helping another inmate, all papers must

5 be returned when an inmate is released, transferred to another institution or when administrative 6 action such as placement in disciplinary segregation prevents direct communication between the 7 two inmates, except if the inmates are active co-defendants or co-plaintiffs in a case being 8 litigated. AR 722 does not appear to define “counsel substitute,” and in any event, such person 9 must not engage in the unauthorized practice of law in Nevada. 10 Other judges within this district have found that an inmate does not have a right to an 11 inmate assistant of his choosing, and he may seek out assistance from another inmate within his 12 housing unit. See Paulo v. Williams, No. 2:19-cv-0044-APG-NJK,

(D. Nev. 13 Aug. 4, 2021). 14 For these reasons, Plaintiff’s motion to appoint Jack Albert Patterson as attorney-in-fact

15 (ECF No. 291) is denied. 16 II. Motion for Appointment of Counsel 17 “[A] person [generally] has no right to counsel in civil actions.” Palmer v. Valdez, 560

(9th Cir. 2009) (citing Storseth v. Spellman,

(9th Cir. 1981)). 19

(e)(1), however, does allow the court to “request an attorney to represent any 20 person unable to afford counsel.” That being said, the appointment of counsel in a civil case is 21 within the court’s discretion and is only allowed in “exceptional cases.” See Palmer, 560 F.3d at 22 970 (citations omitted); see also Harrington v. Scribner,

(9th Cir. 2015). In 23 “determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 1 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 2 of the complexity of the legal issues involved.’” Palmer, 560 F.3d at 970 (quoting Weygandt v. 3 Look,

(9th Cir. 1983)); see also Cano v. Taylor,

(9th Cir. 4 2015). “Neither of these considerations is dispositive and instead must be viewed together.”

5 (citing Wilborn v. Escalderon,

(9th Cir. 1986)); see also Terrell v. Brewer, 6

(9th Cir. 1991) (citation omitted). 7 Plaintiff has filed five prior motions for counsel, that have all been denied because 8 Plaintiff has not demonstrated exceptional circumstances that warrant the appointment of 9 counsel. (ECF No. 5, 8, 104, 105, 164, 169, 214, 215, 217 (order denying reconsideration of 10 denial of appointment of counsel), 272, 273.) Like the prior motions, Plaintiff has not 11 demonstrated in this motion the exceptional circumstances exist to justify the appointment of 12 counsel. 13 Following Defendants’ motion for summary judgment, this action is proceeding on 14 Plaintiff’s Eighth Amendment failure to protect claim against Powers, Kelly and Vidaurri. (ECF

15 Nos. 245, 264.) Plaintiff, once again, has not addressed his likelihood of success on the merits, 16 and thus far he has demonstrated an ability to articulate his claims pro se. Moreover, his claims 17 are not unduly complex. 18 Therefore, Plaintiff’s motion (ECF No. 292) is denied. 19 20 21 22 23 1 Il. Conclusion 2 Plaintiff's motion to appoint Jack Albert Patterson as attorney-in-fact (ECF No. 291) and his motion for the appointment of counsel (ECF No. 292) are DENIED. 4) 1T IS SO ORDERED. Dated: April 27, 2022 CS oy Craig S. Denney 7 United States Magistrate Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23