Foley #072158 v. Antolin et al

Filing 25

ORDER, Plaintiff's motion to appoint counsel 24 is denied; the Clerk must enter a judgment of dismissal of this action without prejudice, pursuant to Rule 41 of the Federal Rules of Civil Procedure, and close this case. Signed by Senior Judge Stephen M McNamee on 2/23/15.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rick Alton Foley,

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Plaintiff,

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No. CV 13-2271-PHX-SMM (JFM)

v.

ORDER

Mrs. Antolin, et al.,

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Defendants.

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I.

Background

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On November 6, 2013, Plaintiff Rick Alton Foley, who is confined in the Arizona

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State Prison Complex-Florence in Florence, Arizona, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a

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February 7, 2014 Order, the Court denied the deficient Application to Proceed and gave

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Plaintiff 30 days to either pay the filing and administrative fees or file a complete

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Application to Proceed In Forma Pauperis. On February 24, 2014, Plaintiff filed a

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second Application to Proceed In Forma Pauperis (Doc. 12). In a September 10, 2014

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Order, the Court granted the Application to Proceed and dismissed the Complaint

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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

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amended complaint that cured the deficiencies identified in the Order.

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On October 14, 2014, Plaintiff filed his First Amended Complaint. In a December

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29, 2014 Order, the Court dismissed the First Amended Complaint for failure to state a

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claim and granted Plaintiff 30 days to file an amended complaint. On January 29, 2015,

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Plaintiff filed a “Notice and Requests of/for Possible Resolution” (Doc. 24) and states

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that if his request for counsel is not granted, that he “seeks this case be dismissed without

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prejudice.” The Court will construe the “Notice and Requests of/for Possible Resolution”

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as a motion to appoint counsel. The Court will further deny the motion to appoint

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counsel and grant Plaintiff’s request to dismiss his case without prejudice.

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II.

Motion to Appoint Counsel

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In his Motion, Plaintiff seeks the appointment of counsel, asserting that he is

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unable to get legal assistance and is untrained in the law. There is no constitutional right

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to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of

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Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court

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may request an attorney to represent any person unable to afford one.

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§ 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only

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when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). A determination with respect to exceptional circumstances requires an

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evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to

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articulate his claims pro se in light of the complexity of the legal issue involved. Id.

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“Neither of these factors is dispositive and both must be viewed together before reaching

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a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

28 U.S.C.

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Having considered both factors, it does not appear at this time that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court

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will deny without prejudice Plaintiff’s Motion to Appoint Counsel.

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III.

Voluntary Dismissal

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Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides in relevant

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part that a plaintiff “may dismiss an action without a court order by filing: (i) a notice of

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dismissal before the opposing party serves either an answer or a motion for summary

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judgment[.]” The right to voluntarily dismiss an action under these circumstances is

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absolute. Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077

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(9th Cir. 1999). Rule 41(a)(1)(B) provides, in relevant part, that “[u]nless the notice . . .

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states otherwise, the dismissal is without prejudice.”

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As discussed above, Plaintiff indicated in his motion to appoint counsel that if the

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motion is denied, he seeks dismissal of this case. The Court will, in its discretion,

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construe Plaintiff’s request as a notice of voluntary dismissal under Rule 41 of the

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Federal Rules of Civil Procedure. Plaintiff is no stranger to litigation before this Court.

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See Foley v. Stewart, et al., CV 99-1505-PHX-RCB (D. Ariz. July 16, 2002); Foley v.

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Schriro, et al., CV 06-0834-PHX-SMM (LOA) (D. Ariz. May 15, 2008); Foley v.

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Frederickson, et al., CV 07-0603-PHX-SMM (D. Ariz. Mar. 23, 2009); Foley v. Schriro,

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et al., CV 07-0787-PHX-SMM (D. Ariz. Aug. 31, 2009); Foley v. Carlson, et al., CV 08-

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0019-PHX-SMM (D. Ariz. June 1, 2009); Foley v. O’Conner, et al., CV 12-0837-PHX-

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SMM (LOA) (D. Ariz, June 19, 2012). As reflected in his prior actions, Plaintiff has

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gained a familiarity with crafting a viable complaint. The Court will, however, grant his

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request for voluntary dismissal of this action and dismiss this case without prejudice.

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IT IS ORDERED:

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(1)

Plaintiff’s motion to appoint counsel (Doc. 24) is denied.

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(2)

The Clerk of Court must enter a judgment of dismissal of this action

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without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, and close

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this case.

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DATED this 23rd day of February, 2015.

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Honorable Stephen M. McNamee
Senior United States District Judge

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