Iribe v. Acosta et al

Filing 38

ORDER granting plaintiff's 30 Motion for Enlargement of Time, and denying plaintiff's 36 Motion for Appointment of Counsel. Plaintiff shall serve the summons and complaint upon the United States as directed in this Court's order filed on December 15, 2014 no later than June 19, 2015. Signed by Judge John A. Houston on 5/11/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALFREDO SEPULVEDA-IRIBE,
Plaintiff,

v.
ACOSTA, et al.,

Defendants.

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Civil No. 10cv1417 JAH(BLM)
ORDER GRANTING PLAINTIFF’S
MOTION FOR ENLARGEMENT OF
TIME [DOC. # 30] AND
DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF
COUNSEL [DOC. # 36]

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Currently pending before the Court are plaintiff’s motions for enlargement of time

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and for appointment of counsel. See Docs. # 30, 36. For the reasons set forth below, this

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Court GRANTS plaintiff’s motion for enlargement of time and DENIES plaintiff’s motion

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for appointment of counsel.

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1.

Enlargement of Time

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On January 2, 2015, plaintiff filed a motion seeking an enlargement of time to serve

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his summons and complaint upon defendant the United States as directed by this Court

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in its order filed December 15, 2014. See Docs. # 27, 30. According to plaintiff, as of the

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date of his submission, he was scheduled to be released from custody and deported to

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Mexico on December 30, 2014 and, thus, sought an extension of time to “get an address

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to get his mail from the court.” Doc. # 30 at 1. Then, on January 6, 2015, plaintiff

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submitted a document entitled “Nunc Pro Tunc Motion” in which he notified the Court

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that he had not yet been deported but still expected to be released and deported “in three

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days from this date.” Doc. # 32 at 1. In his motion seeking appointment of counsel,

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filed on March 30, 2015, plaintiff states he was deported but has had some medical

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conditions that apparently delayed him from continuing with the prosecution of this case.

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See Doc. # 36. However, this Court notes that the discrepancy order allowing the filing

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of plaintiff’s motion for appointment of counsel was returned as undeliverable to plaintiff

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at the address on file. See Doc. # 37.

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Based on these representations, this Court deems it appropriate to allow plaintiff

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additional time to serve the United States as directed by this Court in its order filed on

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December 17, 2014.

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2.

Appointment of Counsel

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In his motion for appointment of counsel, plaintiff seeks appointment of counsel

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“due to the fact that I was deported without my case being resolved within the time I was

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in the United States ...”

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appointment of counsel in a civil case unless an indigent litigant may lose his physical

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liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25

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(1981). Under 28 U.S.C. § 1915(e)(1), however, district courts are granted discretion to

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appoint counsel for indigent persons under “exceptional circumstances.” Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires

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an evaluation of both the ‘likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved.’ Neither of these issues is dispositive and both must be viewed together before

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

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1986)).

Doc. # 36 at 1.

The Constitution provides no right to

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Here, it appears that plaintiff has a sufficient grasp of his case, the legal issues

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involved, and is able to adequately articulate the basis of his complaint. Under these

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circumstances, the Court DENIES plaintiff’s request for appointment of counsel because

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it is not warranted by the interests of justice. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987). This Court finds the mere fact plaintiff has been deported does not rise to the

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level of exceptional circumstances warranting appointment of counsel.
CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that;

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1.

Plaintiff’s motion for enlargement of time [doc. # 30] is GRANTED.

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Plaintiff shall serve the summons and complaint upon the United States as directed in this

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Court’s order filed on December 15, 2014 no later than June 19, 2015; and

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2.

Plaintiff’s motion for appointment of counsel [doc. # 36] is DENIED.

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Dated:

May 11, 2015

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JOHN A. HOUSTON
United States District Judge

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