Cheatham v. Gillespie, et al

Filing 34

ORDER that 27 Report and Recommendation is accepted, plaintiff Emmanuel Cheatham's objections (ECF Nos. 29 , 31 ) are overruled, and plaintiff's motion to alter or amend the judgment (ECF No. 32 ) is denied. This case is DISMISSED wi thout prejudice. FURTHER ORDERED that plaintiff Emmanuel Cheatham's motion to inform (ECF No. 30 ) is GRANTED. The clerk of court shall send plaintiff Emmanuel Cheatham copies of ECF Nos. 3, 8, 13, 14, 16, 22, 24, and 26. FURTHER ORDERED that plaintiff Emmanuel Cheatham's motion for appointment of counsel (ECF No. 33 ) is DENIED. Signed by Judge Andrew P. Gordon on 12/5/16. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

EMMANUEL CHEATHAM,

5
6
7
8

Plaintiff,
v.
GILLESPIE, et al.,
Defendants.

Case No. 2:14-cv-01166-APG-PAL
ORDER DISMISSING CASE
WITHOUT PREJUDICE
(ECF Nos. 27, 29, 30, 31, 32, 33)

9
10
11

On September 30, 2016, Magistrate Judge Leen entered a report and recommendation

12

recommending that I dismiss this action without prejudice for failure to timely serve process. ECF

13

No. 27. The case has been pending since July 2014 and the plaintiff has not served the

14

defendants despite being given multiple opportunities for a year and a half. ECF Nos. 8, 13, 14,

15

26. Judge Leen eventually ordered plaintiff Emmanuel Cheatham to show cause why this matter

16

should not be dismissed for failure to effect service of process on the defendants by the extended

17

service deadline. ECF No. 26. Judge Leen warned Cheatham that failure to timely respond would

18

result in a recommendation that the case be dismissed without prejudice. ECF 26 at 4. Cheatham

19

did not respond. Judge Leen therefore issued her report and recommendation.

20

Cheatham objects, stating that he has not received all his mail, he has tried to comply with

21

the court’s orders, and that he is pro se and unsure of how to proceed. He also asserts, in an

22

untimely objection, that failure to timely serve should be excused where the U.S. Marshal does

23

not timely serve on his behalf.

24

I conducted a de novo review of the issues set forth in the report and recommendation. 28

25

U.S.C. § 636(b)(1). Judge Leen sets forth the proper legal analysis and factual basis for the

26

decision. The U.S. Marshal has repeatedly attempted service based on the information Cheatham

27

has provided but those attempts have been unsuccessful. Cheatham was advised if the U.S.

28

1

Marshal was unable to serve the defendants, then he “must file a motion with the Court specifying

2

a more detailed name and/or address for said defendant(s), or whether some other manner of

3

service should be attempted.” ECF No. 14 at 3. Cheatham has not given any further information

4

and he has not moved for some other manner of service. Cheatham requests another extension of

5

the service deadline but he does not state what new information he would provide the U.S.

6

Marshal for service or what other tactic he may employ to effect service. Consequently, no

7

purpose would be served by another extension of the deadline. I therefore accept Judge Leen’s

8

recommendation and dismiss this action without prejudice.

9

Cheatham also moves for counsel to be appointed. A district court “may request an

10

attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Whether to

11

appoint counsel lies within my discretion. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

12

(9th Cir. 2004). To determine whether exceptional circumstances exist to support appointing

13

counsel, I evaluate “the likelihood of the plaintiff’s success on the merits” and “the plaintiff’s

14

ability to articulate his claims ‘in light of the complexity of the legal issues involved.’” Id.

15

(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Cheatham has

16

demonstrated an ability to articulate his claims, and the legal issues are not complex. I decline to

17

appoint counsel.

18
19
20

Finally, Cheatham requests copies of various documents in this case. I will grant his
request to have the clerk of court send him copies of ECF Nos. 3, 8, 13, 14, 16, 22, 24, and 26.
IT IS THEREFORE ORDERED that Magistrate Judge Leen’s report and recommendation

21

(ECF No. 27) is accepted, plaintiff Emmanuel Cheatham’s objections (ECF Nos. 29, 31) are

22

overruled, and plaintiff’s motion to alter or amend the judgment (ECF No. 32) is denied. This

23

case is DISMISSED without prejudice.

24

IT IS FURTHER ORDERED that plaintiff Emmanuel Cheatham’s motion to inform

25

(ECF No. 30) is GRANTED. The clerk of court shall send plaintiff Emmanuel Cheatham

26

copies of ECF Nos. 3, 8, 13, 14, 16, 22, 24, and 26.

27
28
Page 2 of 3

1
2
3

IT IS FURTHER ORDERED that plaintiff Emmanuel Cheatham’s motion for
appointment of counsel (ECF No. 33) is DENIED.
DATED this 5th day of December, 2016.

4
5
6

ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 3