Mondragon v. Sena et al

Filing 17

ORDER ON PENDING MOTIONS by Magistrate Judge Gregory J. Fouratt. Plaintiff's 5 Motion for the Appointment of Counsel is DENIED. Planitiff's 13 Motion for Settlement is DENIED as premature. Plaintiff's 16 Motion for Trial is DENIED as premature.(gbg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
FABIAN MONDRAGON
Plaintiff,
v.

Civ. No. 18-430 JB/GJF

DETECTIVE ALBERT SENA, et al.,
Defendants.
ORDER ON PENDING MOTIONS
THIS MATTER is before the Court on the Motion for the Appointment of Counsel [ECF
No. 5], Motion for Settlement [ECF No. 13], and Motion for Trial [ECF No. 16] filed by Plaintiff
Fabian Mondragon. For the reasons set forth below, the Court will DENY the Motions.
1. Motion for the Appointment of Counsel. There is no right to appointment of counsel in
a civil rights case. Instead, the decision whether to request assistance of counsel rests in the sound
discretion of the Court. Beaudry v. Corrections Corp. of America, 331 F.3d 1164, 1169 (10th Cir.
2003); MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988). In determining whether to
appoint counsel, a court should consider the merits of the litigant’s claims, the nature and
complexity of the factual and legal issues, and the litigant’s ability to investigate the facts and to
present his claims. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The
Court has reviewed the complaint and subsequent filings in light of the foregoing factors. Plaintiff
appears to understand the issues in the case and to be representing himself in an intelligent and
capable manner. See Lucero v. Gunter, 52 F.3d 874, 878 (10th Cir. 1995). Accordingly, the Court
will DENY the Motion for the Appointment of Counsel [ECF No. 5].

2. Motion for Settlement and Motion for Trial. Because Plaintiff is a prisoner proceeding
pro se a civil action against government officials, the Court is obligated to conduct a preliminary
screening of the Complaint:
The court shall review, before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
. . . On review, the court shall identify cognizable claims or dismiss the complaint,
or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(a) and (b). The Court has a similar obligation to screen the complaint when,
as in this case, a pro se plaintiff is proceeding without prepayment of fees and costs:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2).

Requests for service of process, discovery, settlement, trial, and

submissions of proof are premature and unavailable prior to the Court’s completion of its screening
obligation. See Jones v. Bock, 549 U.S. 199, 213-214 (2007). If Plaintiff’s Complaint is not
dismissed on initial screening, the Court will enter further orders governing service of process,
discovery, and scheduling. Therefore, as the Court has not completed initial screening of the
Plaintiff’s complaint, it will deny Plaintiff’s Motion for Settlement [ECF No. 13] and Motion for
Trial [ ECF No. 16] as premature and without prejudice.

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IT IS THEREFORE ORDERED that (1) the Motion for the Appointment of Counsel
[ECF no. 5] is DENIED, (2) the Motion for Settlement [ECF No. 13] is DENIED as premature;
and (3) the Motion for Trial [ECF no. 16] is DENIED as premature.
IT IS SO ORDERED.

______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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