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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rick Alton Foley, 10 Plaintiff, 11 12 No. CV 13-2271-PHX-SMM (JFM) v. ORDER Mrs. Antolin, et al., 13 Defendants. 14 15 I. Background 16 On November 6, 2013, Plaintiff Rick Alton Foley, who is confined in the Arizona 17 State Prison Complex-Florence in Florence, Arizona, filed a pro se civil rights Complaint 18 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a 19 February 7, 2014 Order, the Court denied the deficient Application to Proceed and gave 20 Plaintiff 30 days to either pay the filing and administrative fees or file a complete 21 Application to Proceed In Forma Pauperis. On February 24, 2014, Plaintiff filed a 22 second Application to Proceed In Forma Pauperis (Doc. 12). In a September 10, 2014 23 Order, the Court granted the Application to Proceed and dismissed the Complaint 24 because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an 25 amended complaint that cured the deficiencies identified in the Order. 26 On October 14, 2014, Plaintiff filed his First Amended Complaint. In a December 27 29, 2014 Order, the Court dismissed the First Amended Complaint for failure to state a 28 claim and granted Plaintiff 30 days to file an amended complaint. On January 29, 2015, 1 Plaintiff filed a “Notice and Requests of/for Possible Resolution” (Doc. 24) and states 2 that if his request for counsel is not granted, that he “seeks this case be dismissed without 3 prejudice.” The Court will construe the “Notice and Requests of/for Possible Resolution” 4 as a motion to appoint counsel. The Court will further deny the motion to appoint 5 counsel and grant Plaintiff’s request to dismiss his case without prejudice. 6 II. Motion to Appoint Counsel 7 In his Motion, Plaintiff seeks the appointment of counsel, asserting that he is 8 unable to get legal assistance and is untrained in the law. There is no constitutional right 9 to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of 10 Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court 11 may request an attorney to represent any person unable to afford one. 12 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only 13 when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 14 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an 15 evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to 16 articulate his claims pro se in light of the complexity of the legal issue involved. Id. 17 “Neither of these factors is dispositive and both must be viewed together before reaching 18 a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 28 U.S.C. 19 Having considered both factors, it does not appear at this time that exceptional 20 circumstances are present that would require the appointment of counsel in this case. 21 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court 22 will deny without prejudice Plaintiff’s Motion to Appoint Counsel. 23 III. Voluntary Dismissal 24 Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides in relevant 25 part that a plaintiff “may dismiss an action without a court order by filing: (i) a notice of 26 dismissal before the opposing party serves either an answer or a motion for summary 27 judgment[.]” The right to voluntarily dismiss an action under these circumstances is 28 absolute. Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 -2- 1 (9th Cir. 1999). Rule 41(a)(1)(B) provides, in relevant part, that “[u]nless the notice . . . 2 states otherwise, the dismissal is without prejudice.” 3 As discussed above, Plaintiff indicated in his motion to appoint counsel that if the 4 motion is denied, he seeks dismissal of this case. The Court will, in its discretion, 5 construe Plaintiff’s request as a notice of voluntary dismissal under Rule 41 of the 6 Federal Rules of Civil Procedure. Plaintiff is no stranger to litigation before this Court. 7 See Foley v. Stewart, et al., CV 99-1505-PHX-RCB (D. Ariz. July 16, 2002); Foley v. 8 Schriro, et al., CV 06-0834-PHX-SMM (LOA) (D. Ariz. May 15, 2008); Foley v. 9 Frederickson, et al., CV 07-0603-PHX-SMM (D. Ariz. Mar. 23, 2009); Foley v. Schriro, 10 et al., CV 07-0787-PHX-SMM (D. Ariz. Aug. 31, 2009); Foley v. Carlson, et al., CV 08- 11 0019-PHX-SMM (D. Ariz. June 1, 2009); Foley v. O’Conner, et al., CV 12-0837-PHX- 12 SMM (LOA) (D. Ariz, June 19, 2012). As reflected in his prior actions, Plaintiff has 13 gained a familiarity with crafting a viable complaint. The Court will, however, grant his 14 request for voluntary dismissal of this action and dismiss this case without prejudice. 15 IT IS ORDERED: 16 (1) Plaintiff’s motion to appoint counsel (Doc. 24) is denied. 17 (2) The Clerk of Court must enter a judgment of dismissal of this action 18 without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, and close 19 this case. 20 DATED this 23rd day of February, 2015. 21 22 23 24 Honorable Stephen M. McNamee Senior United States District Judge 25 26 27 28 -3-

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