Morales v. Minev

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * SERGIO MORALES, Case No.: 2:22-cv-00387-RFB-EJY 5 Plaintiff, ORDER 6 v. MICHAEL MINEV, et al.

8 Defendants.

10 Presently before the Court is Plaintiff Sergio Morale’s Motion for Appointment of Counsel.

11 ECF No. 37.

12 On March 2, 2022, Plaintiff filed his Complaint alleging violations of his Eighth and Fourteenth Amendment protections. ECF No. 1-1. In his Complaint, Plaintiff alleges that due to high blood pressure, high cholesterol, and delays in receiving prescriptions he suffered a heart attack while in custody at High Desert State Prison (“HDSP”). Id. at 3. Plaintiff further claims he has not received a recommended follow-up procedure and, at the time of filing the Complaint, he had been without his cholesterol and hypertension medications since November 2021 and December 2021, respectively. Id. at 4-6. Plaintiff further alleges he is the only person in his housing unit that received delayed treatment and medication. Id. at 6.

20 On June 14, 2022, the Court screened Plaintiff’s Complaint, and permitted Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claim to proceed against Defendants Bernales, Carrillo, Johnson, and Minev. ECF No. 6 at 8. The Court also permitted Plaintiff’s Fourteenth Amendment Equal Protection claim to proceed against the same Defendants. Id. 24 A pro se litigant does not have a constitutional right to appointed counsel upon filing a 42 25 U.S.C. § 1983 civil rights claim. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Rather, when considering the potential appointment of counsel for a pro se plaintiff, the Court must consider whether there are “exceptional circumstances” warranting such an appointment. 28 U.S.C. § 1 || discretionary. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The Ninth Cirer || employs a two-prong test to determine whether “exceptional circumstances” are present. Terrell || Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Court must evaluate the “likelihood of succe || onthe merits and the ability of the petitioner to articulate his claims pro se in light of the complexi || of the legal issues involved.” Jd. “Neither of these factors is dispositive and both must be views || together before reaching a decision on [a] request [for] counsel.” Wilborn v. Escalderon, 789 F.: || 1328, 1331 (Oth Cir. 1986).

8 Here, Plaintiff requests the Court appoint counsel to represent him in this civil action becau || he is unable to afford counsel, is imprisoned which “will greatly limit his ability to litigate this case |} and will need an appointment to view discovery documents. ECF No. 37 at 1-2. Plaintiffalso alleg |} the issues presented in this case are complex because it will require “substantial investigation a1 || discovery” and “conflicting testimony” requiring cross examination. /d.

13 Plaintiff has demonstrated that he may prevail on the merits of his claims, particularly on h || claim of deliberate indifference to serious medical needs. Moreover, the legal issues involved a |} somewhat complex. Defendants have raised the defenses of qualified immunity, discretionary a |} immunity, and that Plaintiffs claims are barred by sovereign immunity. ECF No. 21 at 4. Whi || Plaintiff has demonstrated an ability to articulate the factual basis of his legal claims, the issu || raised seeking to bar his Complaint are complex. Further, the Court finds prosecuting Plaintiff || Eighth Amendment claim will require sophisticated legal knowledge. Weighing these facto || together, the Court concludes that circumstances warrant appointment of counsel in this action.

21 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Appointment □ || Counsel (ECF No. 37) is GRANTED.

23 IT IS FURTHER ORDERED that this matter is referred to the Court’s Pro Bono Progra || for appointment of Counsel.

25 DATED this 18th day of April, 2023.

27 ELAYNA I. i jad UNITED’STATES MAGISTRATE JUDGE