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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Anthony Galbraith, Case No. 2:21-cv-00932-RFB-DJA 6 Plaintiff, 7 Order v. 8 Dr. Michael Miney, et al., 9 Defendants. 10 11 Before the Court is pro se Plaintiff Anthony Galbraith’s motion for subpoenas (ECF No. 12 17) and motion for appointment of counsel (ECF No. 24). Because subpoenas are not the proper 13 method for Plaintiff to serve remaining Defendants, the Court denies his motion for subpoenas 14 without prejudice. (ECF No. 17). Because Plaintiff’s case is still in the early stages, the Court 15 denies his motion for appointment of counsel without prejudice. (ECF No. 24). 16 I. Discussion. 17 In his motion for subpoenas, Plaintiff requests seven subpoenas so that he can serve the 18 remaining Defendants. (ECF No. 17). However, subpoenas are not the appropriate way to serve 19 Defendants. There are only three remaining Defendants in this case who have not been served: 20 Dawn Jones, Brittany Caldwell, and Gregory Bryan. The Attorney General’s office filed these 21 Defendants’ last known addresses under seal because it could not accept service for them. (ECF 22 Nos. 15, 16). Under the Court’s screening order, if the Attorney General’s office could not accept 23 service for “any of the named defendant(s), Plaintiff shall file a motion identifying the unserved 24 defendant(s), requesting issuance of a summons, and specifying a full name and address for the 25 defendant(s).” (ECF No. 13 at 2). Accordingly, if Plaintiff wishes to serve these individuals, he 26 must file a motion identifying which Defendants he wishes to serve, requesting the issuance of a 27 summons, and specifying that the Defendants’ addresses are under seal at ECF No. 15. The Court 1 In his motion for appointment of counsel, Plaintiff explains that he has been moved to 2 Southern Desert Correctional Center, but that after a recent escape, he has been denied access to 3 the law library. (ECF No. 24). He adds that his case will involve conflicting testimony and that 4 counsel will help him present evidence and cross examine witnesses. (Id.). Courts have authority 5 to request that an attorney represent any person unable to afford counsel.

(e)(1). 6 Whether to appoint counsel is within the discretion of the district court and requires a showing of 7 exceptional circumstances. Agyeman v. Corrections Corp. of America,

(9th 8 Cir. 2004). To determine whether exceptional circumstances exist, courts consider the likelihood 9 that the plaintiff will succeed on the merits as well as the plaintiff’s ability to articulate his claims 10 “in light of the complexity of the legal issues involved.”

Neither factor is dispositive, and 11 both must be viewed together. Wilborn v. Escalderon,

(9th Cir. 1986). 12 In Kern v. Henry, the Honorable District Judge Richard F. Boulware appointed counsel to 13 an inmate who asserted that HDSP violated his Eighth Amendment rights by imposing 14 unconstitutional conditions of confinement. See Kern,

, at *1-4. 15 The court first found that the inmate’s claim was likely to succeed because it had survived 16 summary judgment and would proceed to trial.

It then found that the inmate would have 17 difficulty articulating his claim considering its complexity.

The court explained: 18 Plaintiff’s Eighth Amendment conditions of confinement claim will 19 involve both nuances of the law as it relates to different aspects of confinement, e.g. exercise and hygiene, and trial preparation in 20 relation to witnesses who are confined (or were confined) with Plaintiff. While Plaintiff has been able to sufficiently raise genuine 21 issues of material fact for the one claim that is proceeding, this 22 standard is different and less burdensome than what he will face at trial. The court finds that complexity of the relevant legal issues and 23 requirements for trial preparation in this case warrant the appointment of counsel. 24 25

26 Here, the Court denies Plaintiff’s motion for appointment of counsel as premature. (ECF 27 Nos. 24). Plaintiff’s case is not yet at the trial stage. Discovery has just closed, and dispositive 1 claim sufficiently enough to pass screening. In the event Plaintiff’s claims progress further and 2 the process of litigating his claims may involve the conflicting testimony and cross examination 3 about which Plaintiff is concerned, he may re-file his motion for counsel. The Court thus denies 4 Plaintiff’s motion without prejudice, giving him leave to re-file his motion later. 5 6 IT IS THEREFORE ORDERED that Plaintiff’s motion for subpoenas (ECF No. 17) is 7 denied without prejudice. 8 IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (ECF 9 No. 24) is denied without prejudice. 10 11 DATED: February 27, 2023 12 DANIEL J. ALBREGTS 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27