Sigala v. Walden et al

Filing 41

ORDER by District Judge Robert C. Brack denying 6 Motion to Appoint Counsel ; denying 8 ORDER on Motion for Order; denying 10 Motion for Hearing; denying 14 Motion to Appoint Counsel ; denying 16 ORDER on Motion for Order; denying 32 Motion to Appoint Counsel ; denying 34 Motion for Default Judgment; denying 35 Motion for Leave to Proceed in forma pauperis (yc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD SIGALA
Plaintiff,
vs.

No. CV 16-01135 RB/JHR

DR. MARK WALDEN, CORIZON MEDICAL
HEALTHCARE, WARDEN ERASMO BRAVO,
Defendants.
ORDER DENYING PENDING MOTIONS
THIS MATTER is before the Court on several pending motions filed by Plaintiff,
Richard Sigala. The Court will deny Plaintiff Sigala’s motions.
1. Motions for Appointment of Counsel. Plaintiff Sigala is proceeding pro se and in
forma pauperis on civil rights claims brought under 42 U.S.C. § 1983. First, Sigala has filed a
Motion for Appointment of Counsel (Doc. 6), a Pro Se Motion for Appointment of Counsel
(Doc. 14) and a Motion for Appointment of Counsel (Doc. 32). 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. Corr. Corp. of Am., 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, the district 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

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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 Motions for appointment of counsel.
2. In Forma Pauperis Motions. Plaintiff has also filed a Motion to Excuse Filing Fee
Payments (Doc. 8) and a Motion to Proceed In Forma Pauperis (Doc. 35). In his Motion to
Excuse Filing Fee Payments, Sigala seeks to be entirely relieved of the obligation to pay the
$350 filing fee for this action, claiming that he cannot pay the fee even in installment payments.
Plaintiff Sigala has already been granted leave to proceed in forma pauperis under 28 U.S.C. §
1915(b). (Doc. 4.) Section 1915(b) expressly states “[n]otwithstanding subsection (a), if a
prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required
to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1) (emphasis added). The Court
does not have discretion to waive the $350 filing fee under §1915(b).
Sigala contends that he has insufficient funds to pay the filing fee in installment
payments. (Doc. 8.) However, § 1915(b) further provides:
“After payment of the initial partial filing fee, the prisoner shall be required to
make monthly payments of 20 percent of the preceding month’s income
credited to the prisoner’s account. The agency having custody of the prisoner
shall forward payments from the prisoner’s account to the clerk of the court
each time the amount in the account exceeds $10 until the filing fees are paid
in full.”
28 U.S.C. § 1915(b)(2). Plaintiff Sigala has paid the initial partial filing fee. He is obligated to
make additional installment payments only when he has funds available in his prisoner’s account
exceeding $10. Because he has already been granted in forma pauperis status, he is only
required to make the installment payments when he has available funds.

The Court will,

therefore, deny his Motion to Excuse Filing Fee Payments (Doc. 8.) The Court will also deny his
second Motion for Leave to Proceed In Forma Pauperis (Doc. 35) on the grounds that he has
already been granted leave and his second request is moot.
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3. Motions for Meetings and Hearings. Plaintiff Sigala has filed a Motion for Meeting
Under Rule 26(f) (Doc. 10), and a Pro Se Motion as to Case Status and Motion for Telephonic
Status Hearing (Doc. 16). The Court has not completed preliminary screening of Plaintiff’s
Complaint under 28 U.S.C. § 1915A. Plaintiff’s request for meetings and hearings are premature
at this point and will be denied.
4. Motion for Default Judgment. In his Motion for Default Judgment (Doc. 34), Sigala
seeks entry of a default judgment for damages against the Defendants. Under Fed. R. Civ. P. 55,
a default judgment may be entered only when a defendant “has failed to plead or otherwise
defend.” Fed. R. Civ. P. 55(a). As noted, above, Sigala has been granted leave to proceed in
forma pauperis and, if the Complaint survives preliminary screening under § 1915A, the Court
will be obligated to issue and serve all process on the Defendants. 28 U.S.C. § 1915(d). At this
time the Defendants have not been served with process and, as a consequence, have not “failed to
plead or otherwise defend.” Fed. R. Civ. P. 55(a). There is no basis for entry of a default
judgment against the Defendants in this case, and the Court will deny Sigala’s Motion for
Default Judgment. See id.
IT IS ORDERED that Plaintiff Richard Sigala’s Motion to Appointment Counsel (Doc.
6), Motion to Excuse Filing Fee Payments (Doc. 8), Motion for Meeting Under Rule 26(f) (Doc.
10), Pro Se Motion for Appointment of Counsel (Doc. 14), Pro Se Motion as to Case Status and
Motion for Telephonic Status Hearing (Doc. 16), Motion for Appointment of Counsel (Doc. 32)
Motion for Default Judgment (Doc. 34), and Motion to Proceed In Forma Pauperis (Doc. 35)
are DENIED.
________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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