1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 THOMAS WRAY HERNDON, Case No. 3:22-cv-271-ART-CLB

6 Plaintiff, ORDER GRANTING MOTION FOR APPOINTMENT OF COUNSEL 7 v. (ECF No. 51)

8 STATE OF NEVADA ex rel, NDOC, et al., 9 Defendants. 10 11 Plaintiff Thomas Herndon, currently incarcerated at Lovelock Correctional 12 Center, has filed a motion for appointment of counsel in this pro se 1983 action. 13 (ECF No. 51.) Mr. Herndon requests counsel because his case is proceeding to 14 trial. Mr. Herndon cites his lack of legal education, learning disabilities, military 15 service, auto accidents, and traumatic brain injury (“TBI”) as reasons why 16 counsel should be appointed. For the reasons discussed below, the Court 17 grants Plaintiff’s motion for appointment of counsel and refers this case to the 18 pro bono program. 19 I. Legal Standard 20 A litigant does not have a constitutional right to appointed counsel in 42

civil rights claims. Storseth v. Spellman,

, 1353 22 (9th Cir. 1981). Pursuant to

(e)(1), the Court may request an 23 attorney to represent any person unable to afford counsel. However, the Court 24 will appoint counsel for indigent civil litigants only in exceptional 25 circumstances. Palmer v. Valdez,

(9th Cir. 2009) (§ 1983 26 action). When determining whether exceptional circumstances exist, a court 27 must consider the likelihood of success on the merits as well as the ability of 28 the petitioner to articulate his claims pro se in light of the complexity of the 1 legal issues involved. Id. Neither of these considerations is dispositive and 2 instead must be viewed together. Id. 3 II. Analysis 4 Based on the Court’s review of the record, there is at least some 5 likelihood of success on the merits of Plaintiffs’ claims. Plaintiff’s First 6 Amendment Free Exercise, First Amendment Establishment Clause, and 7 Fourteenth Amendment equal protection claims have survived a summary 8 judgment motion. (ECF No. 46.) The parties also engaged in a mediation session 9 in which a settlement was not reached. (ECF No 8.) 10 There are also indications that Mr. Herndon may struggle to articulate his 11 claims at trial, as he is currently incarcerated, has no legal education, and 12 suffers from a learning disability and TBI. While Mr. Herndon represented 13 himself during initial phases of this case, presenting a case to a jury pro se 14 presents new and different challenges for a pro se litigant. “[W]hile a pro se 15 plaintiff may be able to adequately articulate their claims on paper at the 16 pretrial stage, presentation of evidence at trial requires greater knowledge of 17 legal rules and procedures as well as increased technical skills in public 18 speaking and presentation. Appointed counsel also can assist the court in 19 handling the trial ‘more efficiently and effectively.’” Blanco v. Jacoby, No. 3:20- 20 CV-00050-ART-CRD,

, at *3 (D. Nev. Feb. 27, 2023) (quoting 21 Johnson v. California,

(9th Cir. 2000) (per curiam)); see also 22 Perez v. Fenoglio,

(7th Cir. 2015) (“Taking depositions, conducting 23 witness examinations, applying the rules of evidence, and making opening 24 statements are beyond the ability of most pro se litigants to successfully carry 25 out.”). Additionally, Plaintiff’s constitutional claims raise relatively complex legal 26 and factual issues, such as the sincerity of Plaintiff’s religious beliefs, the 27 reasonableness of Defendants’ regulations, and the alleged differential 28 treatment by Defendants of Jewish inmates versus Messianic Jewish inmates. 1 Finding that exceptional circumstances exist, the Court grants Plaintiff's 2 || motion for appointment of counsel. This case is referred to the Pro Bono 3 || Program adopted in Amended General Order 2019-07 for the purpose of 4 || screening for financial eligibility (if necessary) and identifying counsel willing to 5 || be appointed as pro bono counsel for Plaintiff. The scope of appointment shall 6 || be for the remainder of his case, including trial if necessary. By referring this 7 || case to the Program, the Court is not expressing an opinion as to the merits of 8 || the case. 9 III. Conclusion 10 It is hereby ordered that Plaintiffs Motion for Appointment of Counsel 11 || (ECF No. 51) is granted. 12 It is further ordered that this case is referred to the Pro Bono Program for 13 || appointment of counsel for the purposes identified herein. 14 It is further ordered that the Clerk shall also forward this order to the Pro 15 || Bono Liaison. 16 It is further ordered that all other deadlines related to this case are 17 || paused, pending the appointment of pro bono counsel. 18 It is further ordered that a status conference shall be set for Tuesday, 19 || April 8, 2025, at 10:00 a.m. in Reno Courtroom 6. At that hearing, the parties 20 || shall confer with the court on the status of the assignment of pro bono counsel. 21 22 Dated this 5“ day of February 2025. 23 24 As ‘ jlosead Jen 25 ANNE R. TRAUM 26 UNITED STATES DISTRICT JUDGE 27 28