1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ROBERT FORTNER, Case No. 2:23-cv-00059-CDS-VCF 4 Plaintiff, ORDER 5 v.

6 JAMES SCALLY, et al.,

7 Defendants.

8 9 This action began with a pro se civil rights complaint filed pursuant to

1983 by a state prisoner. Plaintiff has submitted an application to proceed in forma 11 pauperis. (ECF No. 4). Based on the financial information provided, the Court finds that 12 Plaintiff is unable to prepay the full filing fee in this matter. 13 The Court entered a screening order on March 13, 2023. (ECF No. 5). The 14 screening order imposed a 90-day stay and the Court entered a subsequent order in 15 which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 16 5, 11). The Office of the Attorney General has filed a status report indicating that 17 settlement has not been reached and informing the Court of its intent to proceed with this 18 action. (ECF No. 14). 19 Plaintiff also filed a motion for appointment of counsel (ECF No. 7), a motion for 20 certificate of interested parties (ECF No. 8), and a motion for summons (ECF No. 9). The 21 Court grants the motion for certificate of interested parties (ECF No. 8) and denies the 22 motion for summons as moot (ECF No. 9) in light of this order. This order directs service 23 in this case. 24 Additionally, like many prisoners who file civil-rights claims, Plaintiff asks the Court 25 to find and appoint a free lawyer because of limited access to legal materials and lack of 26 legal knowledge. (ECF No. 7). A litigant does not have a constitutional right to appointed 27 counsel in

civil-rights claims. Storseth v. Spellman,

, 28 1353 (9th Cir. 1981). The statute that governs this type of litigation,

1915(e)(1), provides that “[t]he court may request an attorney to represent any person 2 unable to afford counsel.” However, the court will appoint counsel for indigent civil 3 litigants only in “exceptional circumstances.” Palmer v. Valdez,

(9th 4 Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances’ exist, 5 a court must consider ‘the likelihood of success on the merits as well as the ability of the 6 petitioner to articulate his claims pro se in light of the complexity of the legal issues 7 involved.” Id. “Neither of these considerations is dispositive and instead must be viewed 8 together.” Id. 9 The Court does not find exceptional circumstances here. See Baker v. Macomber, 10 No. 2:15-CV-00248-TLN-AC,

, at *1 (E.D. Cal. Mar. 12, 2020) (finding 11 that “[c]ircumstances common to most prisoners, such as lack of legal education and 12 limited law library access, do not establish exceptional circumstances that warrant a 13 request for voluntary assistance of counsel”). Plaintiff has demonstrated the ability to 14 articulate his claims. The Court denies the motion to appoint counsel. 15 For the foregoing reasons, IT IS ORDERED that: 16 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 4) is 17 GRANTED. Plaintiff shall not be required to pay an initial installment of the filing fee. In 18 the event that this action is dismissed, the full filing fee must still be paid pursuant to 28

(b)(2). 20 2. The movant herein is permitted to maintain this action to conclusion without 21 the necessity of prepayment of any additional fees or costs or the giving of security 22 therefor. 23 3. Pursuant to

, as amended by the Prison Litigation Reform 24 Act, the Nevada Department of Corrections will forward payments from the account of 25 Robert Fortner, #1202534 to the Clerk of the United States District Court, District of 26 Nevada, 20% of the preceding month's deposits (in months that the account exceeds 27 $10.00) until the full $350 filing fee has been paid for this action. The Clerk of the Court 28 will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk will 1 send a copy of this order to the attention of Chief of Inmate Services for the Nevada 2 Department of Corrections at [email protected]. 3 4. The Clerk of the Court shall electronically SERVE a copy of this order and 4 a copy of Plaintiff’s complaint (ECF No. 6) on the Office of the Attorney General of the 5 State of Nevada by adding the Attorney General of the State of Nevada to the docket 6 sheet. This does not indicate acceptance of service. 7 5. Service must be perfected within ninety (90) days from the date of this order 8 pursuant to Fed. R. Civ. P. 4(m). 9 6. Subject to the findings of the screening order (ECF No. 5), within twenty- 10 one (21) days of the date of entry of this order, the Attorney General’s Office shall file a 11 notice advising the Court and Plaintiff of: (a) the names of the defendants for whom it 12 accepts service; (b) the names of the defendants for whom it does not accept service, 13 and (c) the names of the defendants for whom it is filing the last-known-address 14 information under seal. As to any of the named defendants for whom the Attorney 15 General’s Office cannot accept service, the Office shall file, under seal, but shall not serve 16 the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such 17 information. If the last known address of the defendant(s) is a post office box, the Attorney 18 General's Office shall attempt to obtain and provide the last known physical address(es). 19 7. If service cannot be accepted for any of the named defendant(s), Plaintiff 20 shall file a motion identifying the unserved defendant(s), requesting issuance of a 21 summons, and specifying a full name and address for the defendant(s). For the 22 defendant(s) as to which the Attorney General has not provided last-known-address 23 information, Plaintiff shall provide the full name and address for the defendant(s). 24 8. If the Attorney General accepts service of process for any named 25 defendant(s), such defendant(s) shall file and serve an answer or other response to the 26 complaint (ECF No. 6) within sixty (60) days from the date of this order. 27 9. Plaintiff shall serve upon defendant(s) or, if an appearance has been 28 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 4|| document submitted for consideration by the Court. If Plaintiff electronically files a 2\|| document with the Court’s electronic-filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff 4|| mails the document to the Court, Plaintiff shall include with the original document 5|| submitted for filing a certificate stating the date that a true and correct copy of the 6|| document was mailed to the defendants or counsel for the defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. g|} The Court may disregard any document received by a district judge or magistrate judge which has not been filed with the Clerk, and any document received by a district judge, 41|| magistrate judge, or the Clerk which fails to include a certificate showing proper service when required. 13 10. ‘This case is no longer stayed. 14 11. The motion for appointment of counsel (ECF No. 7) is denied without 15|| prejudice. 16 12. |The motion for certificate of interested parties (ECF No. 8) is granted. 17 13. | The motion for summons (ECF No. 9) is denied as moot. 18 DATED THIS ?' day of June 2023. 19

UNITED STATES MAGISTRATE JUDGE

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