SaLazar v. Norfolk Regional Center et al

Filing 14

MEMORANDUM AND ORDER - Plaintiff's Motion to Appoint Counsel (filing no. 13 ) is denied. Plaintiff's monetary damages claims against the NRC and the named individual Defendants in their official capacities are dismissed. Plaintiff's remaining claims may proceed to service. To obtain service of process on Defendant, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send SEVEN (7) summons forms and SEV EN (7) USM-285 forms (for service on NRC and the individual Defendants in both their individual and official capacities) to Plaintiff together with a copy of this Memorandum and Order. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: "August 6, 2012: Check for completion of service of summons." Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMBROSIO SALAZAR JR.,
Plaintiff,
v.
NORFOLK REGIONAL CENTER,
et al.,
Defendants.

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4:11CV3207

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Amended Complaint (filing no. 12)
and Motion to Appoint Counsel (filing no. 13). On February 14, 2012, the court
conducted an initial review of Plaintiff’s Complaint and determined that it failed to
state a claim for monetary damages against the Norfolk Regional Center (“NRC”) and
the named individual Defendants in their official capacities.

(Filing No. 11 at

CM/ECF pp. 3-4.) The court also determined that the Complaint failed to state a
Fourteenth Amendment claim related to the tightness of Plaintiff’s restraints at NRC.
(Id. at CM/ECF pp. 4-6.) However, the court gave Plaintiff until March 12, 2012, to
file an amended complaint. (Id. at CM/ECF p. 7.) On March 12, 2012, Plaintiff filed
an Amended Complaint. (Filing No. 12.)
After reviewing Plaintiff’s Amended Complaint, the court finds that Plaintiff
has alleged sufficient facts to state a Fourteenth Amendment claim related to the
tightness of his restraints. For the reasons set forth in the court’s February 14, 2012,
Memorandum and Order, Plaintiff’s monetary damages claims against NRC and the
named individual Defendants in their official capacities are dismissed. Plaintiff’s
remaining claims may proceed to service in accordance with this Memorandum and
Order and the court’s February 14, 2012, Memorandum and Order.
Also pending is Plaintiff’s Motion to Appoint Counsel. (Filing No. 13.) The
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444,

447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent
civil litigants do not have a constitutional or statutory right to appointed counsel. . . .
The trial court has broad discretion to decide whether both the plaintiff and the court
will benefit from the appointment of counsel . . . .” Id. (quotation and citation
omitted). No such benefit is apparent here. Plaintiff’s request for the appointment of
counsel is therefore denied without prejudice.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion to Appoint Counsel (filing no. 13) is denied.

2.

Plaintiff’s monetary damages claims against the NRC and the named

individual Defendants in their official capacities are dismissed.
3.

Plaintiff’s remaining claims may proceed to service.

4.

To obtain service of process on Defendant, Plaintiff must complete and

return the summons forms which the Clerk of the court will provide. The Clerk of the
court shall send SEVEN (7) summons forms and SEVEN (7) USM-285 forms (for
service on NRC and the individual Defendants in both their individual and official
capacities) to Plaintiff together with a copy of this Memorandum and Order. Plaintiff
shall, as soon as possible, complete the forms and send the completed forms back to
the Clerk of the court. In the absence of the forms, service of process cannot occur.
5.

Upon receipt of the completed forms, the Clerk of the court will sign the

summons form, to be forwarded with a copy of the Amended Complaint to the U.S.
Marshal for service of process. The Marshal shall serve the summons and Amended
Complaint without payment of costs or fees. Service may be by certified mail
pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the Marshal. The
Clerk of the court will copy the Amended Complaint, and Plaintiff does not need to
do so.
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6.

Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within

120 days of filing the complaint. However, because in this order Plaintiff is informed
for the first time of these requirements, Plaintiff is granted, on the court’s own motion,
an extension of time until 120 days from the date of this order to complete service of
process.
7.

Plaintiff is hereby notified that failure to obtain service of process on a

defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has twenty (20) days
after receipt of the summons to answer or otherwise respond to a complaint.
8.

The Clerk of the Court is directed to set a pro se case management

deadline in this case with the following text: “August 6, 2012: Check for completion
of service of summons.”
9.

The parties are bound by the Federal Rules of Civil Procedure and by the

Local Rules of this court. Plaintiff shall keep the court informed of his current address
at all times while this case is pending. Failure to do so may result in dismissal.
DATED this 5 th day of April, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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