Holmes v. Barker et al

Filing 19

ORDER that Pla's 18 Motion for appointment of counsel is denied; Pla's 17 Motion to serve dfts is denied as moot. Pla shall promptly inform the Marshals Service of the names of the specific Dfts he wishes to have served, along with the addresses or location of such Dfts. Pla shall complete service upon dfts by 10/06/08. The Clerk shall terminate this action if Pla fails to comply with this order. Signed by Judge David G Campbell on 09/18/08. (ESL)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Joseph C. Holmes, Plaintiff, vs. Russell Barker, a Police Officer for the City of Clinton, Tennessee, et al. Defendants.

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No. CV-08-190-PHX-DGC ORDER

Plaintiff has filed a motion to serve defendants and a motion for appointment of counsel. Dkt. ##17-18. The Court will deny the motions. I. The Motion to Serve Defendants. Plaintiff requests that the Court order the United States Marshal Service to effect service of process on Plaintiff's behalf. Dkt. #17 at 7. The Court granted this request in a previous order. See Dkt. #12 at 2-3. The Court will therefore deny the instant motion as moot. As stated in the previous order, Plaintiff is instructed to promptly inform the Marshals Service of the names of the specific Defendants he wishes to have served, along with the addresses or locations of such Defendants. See id. at 2. Plaintiff is advised that he has until October 6, 2008 to complete service upon Defendants and that the case will be dismissed if Plaintiff fails to meet this deadline. See id. at 2-3.

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II.

The Motion for Appointment of Counsel. There is no constitutional right to appointed counsel in a civil case. See Ivey v. Bd.

of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court, however, has discretion to appoint counsel in "exceptional circumstances." See 28 U.S.C. § 1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). "A finding of exceptional circumstances requires an evaluation of both `the likelihood of success on the merits and the ability of the petitioner to articulate his or her claim pro se in light of the complexity of the legal issues involved.'" Wilborn, 789 F.2d at 1331 (quoting Weygant v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Having considered both factors, the Court finds that Plaintiff has not demonstrated a likelihood of success on the merits or that any difficulty he is experiencing in attempting to litigate his case is due to the complexity of the issues involved. Plaintiff's motion makes clear that he is able to adequately articulate his claims. See Dkt. #18. While Plaintiff has noted financial difficulties he is experiencing, such difficulties do not make this case exceptional. The Court therefore concludes that the case does not present "exceptional circumstances" warranting the appointment of counsel. IT IS ORDERED: 1. 2. 3. Plaintiff's motion for appointment of counsel (Dkt. #18) is denied. Plaintiff's motion to serve defendants (Dkt. #17) is denied as moot. Plaintiff shall promptly inform the Marshals Service of the names of the specific Defendants he wishes to have served, along with the addresses or locations of such Defendants. 4. Plaintiff shall complete service upon Defendants by October 6, 2008.

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5.

The Clerk shall terminate this action if Plaintiff fails to comply with this order.

DATED this 18th day of September, 2008.

USMS

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