George v. Uribe et al

Filing 10

ORDER: (1) denying 4 Motion to Appoint Counsel; and (2) Directing U.S. Marshal to Effect Service of First Amended Complaint: Clerk to provide IFP package. U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each Defenda nt as directed by Plaintiff on each Form 285. Defendants are ORDERED to reply to Plaintiffs First Amended Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). Signed by Judge Janis L. Sammartino on 5/24/11. (All non-registered users served via U.S. Mail Service)(IFP package sent) (CC: USM)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD EARL GEORGE,
CDCR #V-56048,

Plaintiff,

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Civil No.

11cv0070 JLS (RBB)

ORDER:

vs.

(1) DENYING MOTION FOR
APPOINTMENT OF COUNSEL; and

DOMINGO URIBE; ALAN HERNANDEZ;
FELIPE LOPEZ; JOSE VALASQUEZ;
MANUEL FARIAS; L. VALENZUELA; F.
GUTIERREZ; ALVARADO; L.
CALDERON; J. CARVAJAL,

(2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF FIRST
AMENDED COMPLAINT
PURSUANT TO FED.R.CIV.P. 4(c)(3)
& 28 U.S.C. § 1915(d)

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Defendants.

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I.

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PROCEDURAL HISTORY

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On January 12, 2011, Richard Earl George (“Plaintiff”), a state prisoner currently

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incarcerated at Salinas Valley State Prison located in Soledad, California, and proceeding in pro

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se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a

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Motion to Proceed In Forma Pauperis (“IFP”).

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On March 21, 2011, the Court granted Plaintiff’s Motion to Proceed IFP and sua sponte

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dismissed his Complaint for failing to state a claim. See March 21, 2011 Order at 5-6. Plaintiff
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was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading

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identified by the Court. Id. at 6. On April 15, 2011, Plaintiff filed his First Amended Complaint

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(“FAC”), along with a Motion for Appointment of Counsel.

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II.

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MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 4]

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Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action.

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The Constitution provides no right to appointment of counsel in a civil case, however, unless an

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indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social

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Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are

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granted discretion to appoint counsel for indigent persons. This discretion may be exercised only

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under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A

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finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success

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on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be

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viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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III.

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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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As discussed in the previous Order, because Plaintiff is proceeding IFP and is a

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“prisoner” as defined by 28 U.S.C. § 1915(h), the Court must also review his Amended

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Complaint sua sponte before service, and dismiss the entire action, or any part of his Amended

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Complaint, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but

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requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a
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claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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Before amendment by the Prison Litigation Reform Act (“PLRA”), the former 28 U.S.C.

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§ 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203

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F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact.

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Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, 28 U.S.C. § 1915(e)(2) and § 1915A

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mandate that the court reviewing an IFP or prisoner’s suit make and rule on its own motion to

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dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P.

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4(c)(3). See Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05

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(6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service

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of process is made on the opposing parties”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998) (discussing 28 U.S.C. § 1915A).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); Andrews v. King, 398 F.3d

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1113, 1121 (9th Cir. 2005). In addition, the Court has a duty to liberally construe a pro se’s

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pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988),

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which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the

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court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board

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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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The Court finds that Plaintiff’s claims are now sufficiently pleaded to survive the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is

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entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C.

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§ 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties in

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[IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United

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States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis

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under 28 U.S.C. § 1915.”). Plaintiff is cautioned, however, that “the sua sponte screening and
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11cv0070 JLS (RBB)

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dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6)

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motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119

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(S.D. Cal. 2007).

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IV.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion for Appointment of Counsel [ECF No. 4] is DENIED without

prejudice.
IT IS FURTHER ORDERED that:
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The Clerk shall issue a summons as to Plaintiff’s First Amended Complaint upon

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the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form

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285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a copy of

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this Order, the Court’s March 21, 2011 Order granting Plaintiff leave to proceed IFP, and copies

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of his First Amended Complaint and the summons for purposes of serving each Defendant.

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Upon receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as

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completely and accurately as possible, and to return them to the United States Marshal according

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to the instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter,

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the U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each

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Defendant as directed by Plaintiff on each Form 285. All costs of service shall be advanced by

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the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).

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3.

Defendants are thereafter ORDERED to reply to Plaintiff’s First Amended

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted

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to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or

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other correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary

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determination based on the face on the pleading alone that Plaintiff has a “reasonable

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opportunity to prevail on the merits,” Defendants are required to respond).
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4.

Plaintiff shall serve upon Defendants or, if appearance has been entered by

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counsel, upon Defendants’ counsel, a copy of every further pleading or other document

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submitted for consideration of the Court. Plaintiff shall include with the original paper to be

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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy

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of any document was served on Defendants, or counsel for Defendants, and the date of service.

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Any paper received by the Court which has not been filed with the Clerk or which fails to

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include a Certificate of Service will be disregarded.

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IT IS SO ORDERED.

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DATED: May 24, 2011
Honorable Janis L. Sammartino
United States District Judge

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