Calderon v. Houston

Filing 15

MEMORANDUM AND ORDER - Plaintiff's Motion for Appointment of Counsel (Filing No. 7 ), Motion for Preliminary Injunction (Filing No. 10 ), and Motion for Summons (Filing No. 13 ) are denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAUL CALDERON,
Plaintiff,
v.
ROBERT P. HOUSTON,
Defendant.

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4:13CV3030

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Raul Calderon’s (“Plaintiff”) Motion
for Appointment of Counsel (Filing No. 7), Motion for Preliminary Injunction (Filing
No. 10), and Motion for Summons (Filing No. 13).
A.

Motion for Appointment of Counsel

Plaintiff requests the appointment of counsel. 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. Therefore, Plaintiff’s request for the appointment of counsel will be
denied.
B.

Motion for Preliminary Injunction

Plaintiff asks the court to order Defendant to release him from custody.
However, Plaintiff’s Motion seeks relief that is not available to him in this action.
Claims relating to the validity of an individual’s incarceration may not be brought in
a civil rights case. As set forth by the Supreme Court in Preiser v. Rodriguez, 411

U.S. 475 (1973) and Heck v. Humphrey, 512 U.S. 477 (1994), if success on the merits
of a civil rights claim would unnecessarily implicate the validity of a conviction or
continued confinement of a convicted state prisoner, the civil rights claim must be
preceded by a favorable outcome in habeas corpus or similar proceedings in a state
or federal forum. Absent such a favorable disposition of the charges or conviction,
a plaintiff may not use 42 U.S.C. 1983 to cast doubt on the legality of his conviction
or confinement. See Heck, 512 U.S. at 486-87. Accordingly, the court will deny
Plaintiff’s Motion for Preliminary Injunction.
C.

Motion for Summons

Plaintiff has not paid the initial partial filing fee in this matter, and this matter
will not proceed until he does so. Therefore, the court will deny Plaintiff’s Motion
for Summons.
IT IS THEREFORE ORDERED that: Plaintiff’s Motion for Appointment of
Counsel (Filing No. 7), Motion for Preliminary Injunction (Filing No. 10), and
Motion for Summons (Filing No. 13) are denied.
DATED this 22nd day of February, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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