Lucero v. Armale et al

Filing 18

ORDER 1) DENYING RENEWED MOTION TO APPOINT COUNSEL 17 AND 2) GRANTING MOTION FOR U.S. MARSHAL SERVICE PURSUANT TO Fed. R. Civ. P. 4(c)(3) 15 .. Signed by Judge Barry Ted Moskowitz on 11/12/2018. (All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JASON LUCERO,
CDCR #V-33131

Case No.: 3:17-cv-00957-BTM-RBB

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vs.

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ORDER:

Plaintiff,

1) DENYING RENEWED MOTION
TO APPOINT COUNSEL
[ECF No. 17]

S. ARMALE, Correctional Officer;
W. GILLIS, Officer,

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Defendants.

AND

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2) GRANTING MOTION FOR U.S.
MARSHAL SERVICE PURSUANT
TO Fed. R. Civ. P. 4(c)(3)
[ECF No. 15]

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Jason Lucero (“Plaintiff”), currently incarcerated at Salinas Valley State Prison, is

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proceeding pro se in this case, and has filed an Amended Complaint against two

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correctional officers at Richard J. Donovan Correctional Facility (“RJD”) in San Diego.

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See ECF No. 8. Unlike most prisoners, Plaintiff is not proceeding in forma pauperis

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(“IFP”) pursuant to 28 U.S.C. § 1915(a)—he has instead prepaid the $400 civil and

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administrative filing fee required by 28 U.S.C. § 1914(a). See ECF Nos. 9, 11.

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3:17-cv-00957-BTM-RBB

On June 21, 2018, the Court screened Plaintiff’s Amended Complaint sua sponte

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as required by 28 U.S.C. § 1915A, and liberally construed his claims to arise under 42

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U.S.C. § 1983, as opposed to Bivens v. Six Unknown Named Agents of the Federal

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Bureau of Narcotics, 403 U.S. 388 (1971), because he alleges Defendants Armale and

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Gills, both state correctional officers at RJD, violated his constitutional rights while he

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was incarcerated there in June 2016. See ECF No. 13 at 5-9. So construed, the Court

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found Plaintiff’s Amended Complaint “contains Eighth Amendment claims sufficient to

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survive the ‘low threshold’ for proceeding past the sua sponte screening” required by 28

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U.S.C. § 1915A(b), but also noted that he “remain[ed] responsible for effecting service of

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the summons and his Amended Complaint.” Id. at 8-9. And while the Court tolled Fed. R.

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Civ. P. 4(m)’s 90-day time period for service while it conducted its mandatory screening,

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id. at 9 (citing Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1204 n.8

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(9th Cir. 2014)), it ordered Plaintiff to either: 1) file a written request to the Clerk to issue

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a summons as to Defendants Armale and Gills so that he might use to effect service of his

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Amended Complaint within 90 days, or 2) file a written request that the Court order

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service be effected on his behalf by the United States Marshal or deputy marshal pursuant

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to Fed. R. Civ. P. 4(c)(3). See ECF No. 13 at 10.

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Plaintiff has since filed a Motion Requesting U.S. Marshal Service (ECF No. 15),

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and has renewed his previous Motion for the Appointment of Counsel pursuant to 28

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U.S.C. § 1915(e)(1) (ECF No. 17).

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I.

Renewed Motion to Appoint Counsel

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On August 14, 2017, the Court denied Plaintiff’s initial Motion to Appoint to

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Counsel because he failed to submit an affidavit sufficient to show he was indigent

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pursuant to 28 U.S.C. § 1915(a) & (b), and because his pleadings at the time failed to

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demonstrate he was unable to articulate the factual basis for his claims in pro se, and

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failed to show he was likely to succeed on the merits. See ECF No. 6 at 3-4 (citing 28

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U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)).
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Plaintiff’s renewed Motion now contains an affidavit in which he attests to have

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only $1,082.53 in his inmate trust account, and no other assets or income with which to

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retain counsel. See ECF No. 17 at 3. However, while sufficiently impoverished, Plaintiff

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nevertheless fails to demonstrate the exceptional circumstances required to warrant

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appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Agyeman v. Corr. Corp.

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of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (noting that while district courts enjoy

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the discretion to appoint counsel in civil cases for indigent persons, that discretion may

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be exercised only in “exceptional circumstances.”). “A finding of exceptional

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circumstances requires an evaluation of both the ‘likelihood of success on the merits and

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

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

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together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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As the Court noted in its June 21, 2018 screening Order, Plaintiff’s Amended

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Complaint alleges facts sufficient to state a plausible claim for relief as to his Eighth

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Amendment claims against Defendants Armale and Gills. These alleged constitutional

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violations are typical in prison litigation, straightforward, and not demonstrably complex.

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See ECF No. 13 at 5-9; Terrell, 935 F.2d at 1017; Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). Moreover, while Plaintiff has adequately pleaded a factual basis in support of his

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claims, he has not yet shown he is likely to succeed on the merits at this initial stage of

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the proceedings. Id.; see also Rademaker v. Paramo, No. 3:17-CV-02406-BTM-JLB,

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2018 WL 3303172, at *1 (S.D. Cal. July 5, 2018) (denying appointment of counsel

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pursuant to 28 U.S.C. § 1915(e)(1) because “at th[e] early stage when the parties have not

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yet completed discovery and have not proffered any evidence to the Court in support of

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their claims, the Court cannot determine whether or not Plaintiff is likely to succeed on

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the merits.”) (citing Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993)).

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For these reasons, the Court DENIES Plaintiff’s renewed Motion to Appoint
Counsel (ECF No. 17) without prejudice pursuant to 28 U.S.C. § 1915(e)(1).
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II.

Motion for U.S. Marshal Service
As noted above, the Court has found Plaintiff’s Amended Complaint sufficient to

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state plausible Eighth Amendment claims for relief as to Defendants S. Armale and W.

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Gills, both alleged to be correctional officers employed at RJD in June 2016, and to have

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caused Plaintiff’s injury. See ECF No. 13 at 7-9. Were Plaintiff proceeding IFP pursuant

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to 28 U.S.C. § 1915(a), the Court would have automatically directed the U.S. Marshal to

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effect service upon his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall

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issue and serve all process, and perform all duties in [IFP] cases.”).

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Plaintiff is not proceeding IFP in this case; however, he has since submitted an

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affidavit attesting as to his poverty despite his having previously prepaid the $400 civil

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filing fee, see ECF No. 17 at 3; Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D.

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Cal. 1994) (“IFP status may be acquired or lost during the course of the litigation.”)

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(citations omitted), vacated on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th

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Cir. 1995), and he has filed a Motion requesting that the United States Marshal effect

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service of the summons and his Amended Complaint upon Defendants Armale and Gills

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on his behalf. See ECF No. 15; Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the

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court may order that service be made by a United States Marshal or deputy marshal or by

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a person specially appointed by the court.”). Good cause having now been shown, the

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Court GRANTS Plaintiff’s Motion for U.S. Marshal Service pursuant to Fed. R. Civ. P.

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4(c)(3) (ECF No. 15).

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III.

Conclusion and Orders

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In conclusion, the Court:

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1)

DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 17) without

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prejudice, but GRANTS his Motion Requesting Court-Ordered U.S. Marshal Service

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pursuant to Fed. R. Civ. P. 4(c)(3) (ECF No. 15]).

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2)

DIRECTS the Clerk to issue a summons as to Plaintiff’s Amended

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Complaint (ECF No. 8) upon Defendants S. ARMALE and W. GILLS and forward it to

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Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, the
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Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of his

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Amended Complaint, and the summons so that he may serve them upon Defendants

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ARMALE and GILLS. Upon receipt of this “IFP Package,” Plaintiff must complete the

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Form 285s as completely and accurately as possible, include an address where each

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Defendant may be served, see S.D. CAL. CIVLR 4.1.c, and return them to the United

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States Marshal according to the instructions the Clerk provides in the letter

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accompanying his IFP package.

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3)

ORDERS the U.S. Marshal to serve a copy of the Amended Complaint and

summons upon Defendants ARMALE and GILLS as directed by Plaintiff on the USM

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Form 285s provided to him. All costs of that service will be advanced by the United

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

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4)

ORDERS Defendants ARMALE and GILLS, once served, to reply to

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Plaintiff’s Amended Complaint within the time provided by the applicable provisions of

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Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants

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may occasionally be permitted to “waive the right to reply to any action brought by a

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prisoner confined in any jail, prison, or other correctional facility under section 1983,”

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once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” Defendants are

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required to respond).

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5)

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants ARMALE and GILLS, or, if appearance has been entered by

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

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document submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b).

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Plaintiff must include with every original document he seeks to file with the Clerk of the

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Court, a certificate stating the manner in which a true and correct copy of that document

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has been was served on Defendants or their counsel, and the date of that service. See S.D.

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CAL. CIVLR 5.2. Any document received by the Court which has not been properly filed
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with the Clerk, or which fails to include a Certificate of Service upon the Defendants,

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may be disregarded.

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IT IS SO ORDERED.

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Dated: November 12, 2018
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court

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