Sawyer v. Chappell et al

Filing 49

ORDER by Judge James Donato denying 37 Motion to Appoint Counsel. (lrcS, COURT STAFF) (Filed on 1/12/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KEVIN DEROI SAWYER,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 15-cv-00220-JD

ORDER DENYING MOTION TO
APPOINT COUNSEL

v.
CHRIS MACDONALD, et al.,

Re: Dkt. No. 37

Defendants.

12
13

Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. §

14

1983. The Court ordered service on defendants Cavagnolo, McDonald, and Tate who worked at

15

San Quentin State Prison. Cavagnolo has been served. The United States Marshal reported that

16

the California Department of Corrections and Rehabilitation (“CDCR”) has no current

17

employment information regarding McDonald and no forwarding information. Docket No. 19.

18

Defendant Tate no longer works for CDCR and while a forwarding address was provided, the

19

United States Marshal went to the new address but learned that Tate had moved with no

20

forwarding address. Id. Plaintiff later provided a new address for defendant Tate, but the United

21

States Marshal was unable to serve the defendant. The United States Marshal learned that Tate

22

had moved with no forwarding address. Docket No. 44. Within 28 days of service of this order,

23

plaintiff must provide more information to serve these defendants or they will be dismissed

24

pursuant to Fed. R. Civ P. 4(m). Plaintiff may seek such information through the California

25

Public Records Act or any other means available.

26

Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a

27

district court may ask counsel to represent an indigent litigant only in “exceptional

28

circumstances,” the determination of which requires an evaluation of both (1) the likelihood of

1

success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of

2

the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

3

1991). Plaintiff appears able to present his claims adequately, and the issues are not complex.
CONCLUSION

4
5

1. Plaintiff’s motion to appoint counsel (Docket No. 37) is DENIED.

6

2. Within 28 days of service of this order, plaintiff must provide more information to

7

serve McDonald and Tate or they will be dismissed pursuant to Fed. R. Civ P. 4(m). Plaintiff may

8

seek such information through the California Public Records Act or any other means available.

9
10

IT IS SO ORDERED.
Dated: January 12, 2017

United States District Court
Northern District of California

11
12
JAMES DONATO
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

KEVIN DEROI SAWYER,

Case No. 15-cv-00220-JD

Plaintiff,
5
v.

CERTIFICATE OF SERVICE

6
7

CHRIS MACDONALD, et al.,
Defendants.

8
9
10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

11
12
13
14
15

That on January 12, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

16
17
18

Kevin DeRoi Sawyer
P22673
San Quentin State Prison
San Quentin, CA 94974

19
20
21

Dated: January 12, 2017

22
23

Susan Y. Soong
Clerk, United States District Court

24
25
26
27

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

28
3