Lopez v. Florez et al

Filing 44

ORDER DENYING Plaintiff's 36 Motions for Appointment of Counsel and for an Order to Show Cause signed by Magistrate Judge Jennifer L. Thurston on 3/14/2012. (Sant Agata, S)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANDREW R. LOPEZ,

12

Plaintiff,

13
14

Case No. 1:08-cv-01975 LJO JLT (PC)
ORDER DENYING PLAINTIFF’S MOTIONS
FOR APPOINTMENT OF COUNSEL AND
FOR AN ORDER TO SHOW CAUSE

vs.
FLOREZ, et al.,

15

(Doc. 36)

Defendants.

16

/

17

On February 27, 2012, Plaintiff filed a motion seeking several orders from the Court: 1) Plaintiff

18

requested the appointment of counsel; 2) Plaintiff requested the Court issue an “Order to Show Cause”;

19

3) Plaintiff demanded to know the identity of the persons providing information in the “Remarks”

20

section of the service forms presented by the U.S. Marshall service; and 4) Plaintiff sought numerous

21

records from the warden at Corcoran State Prison. (Doc. 36). Plaintiff does not specify exactly why he

22

seeks the Order to Show Cause or against whom he seeks that Order. Based upon the content of

23

Plaintiff’s Motion, the Court assumes it relates to his belief that staff at Corcoran State Prison are

24

thwarting his efforts to proceed with his legal claims against the Defendants. For the reasons set forth

25

below, Plaintiff’s motions are DENIED. However, the Court notes that it has recently issued an Order

26

Directing the United States Marshall Service to Initiate Re-Service on Defendants Florez, Reed, and

27

Veronica Using Assistance of Legal Affairs Division of the CDCR. (Doc. 40).

28

///
1

1

Appointment of Counsel

2

Plaintiff is advised that he does not have a constitutional right to appointed counsel in this action,

3

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and that the Court cannot require an attorney

4

to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the

5

Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances,

6

the Court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at

7

1525. In determining whether “exceptional circumstances exist, a district court must evaluate both the

8

likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

9

light of the complexity of the legal issues involved.” Id. (internal quotations and citations omitted).

10

In the present case, the Court does not find the required exceptional circumstances. Even if it

11

is assumed that Plaintiff is not well-versed in the law and that he has made serious allegations which,

12

if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

13

almost daily. Without a reasonable method of securing and compensating counsel, the Court will seek

14

volunteer counsel only in the most serious and exceptional cases. The Defendants in this case, have not

15

yet been served. Plaintiff has, however, has responded to each of the deadlines set by the Court thus far.

16

At this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to

17

succeed on the merits. And, based on a review of the record and the evidence presented (or lack

18

thereof), the Court does not find that Plaintiff’s health precludes him from adequately articulating his

19

claims.

20

Order to Show Cause

21

On January 30, 2012, the Court directed the United States Marshal to serve Defendants

22

Florez, Reed and Veronica the summons and complaint. (Doc. 33) The summons were returned

23

unexecuted. (Doc.34) The Marshal reported that the CDCR was unable to locate any record of

24

these Defendants. Id. at 1-3.

25

Plaintiff seems to requests that this Court use its contempt authority to order the entity that

26

employs Defendants to produce documents which would enable the Marshall to serve the Defendants.

27

While Plaintiff believes he has submitted sufficient information to allow the Marshall to identify the

28

Defendants, it does logically follow that such information is sufficient to effectuate service. Given
2

1

Plaintiff’s concerns, the Court has recently ordered the United States Marshall Service to attempt to re-

2

serve Defendants Florez, Reed, and Veronica with the First Amended Complaint using Assistance of

3

Legal Affairs Division of the CDCR. (Doc. 40). The Court does not believe that any agency’s conduct

4

related to service of the operative complaint warrants an Order to Show Cause and therefore declines

5

to issue such an order or compel the production of any material. The Court finds Plaintiff’s concerns

6

have been addressed through the Court’s recent order to the United States Marshall. (Doc. 40).

7
8

Accordingly, it is HEREBY ORDERED that Plaintiff’s February 27, 2012 motion for the
appointment of counsel and for an Order to Show Cause (Doc. 36) is DENIED.

9
10

IT IS SO ORDERED.

11

Dated: March 14, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3