Nevarez v. Fanning

Filing 9

ORDER by Magistrate Judge Stephan M. Vidmar EXTENDING Show-Cause Response Deadline to June 9, 2017, AND DENYING 8 Motion to Appoint Counsel (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BENJAMIN ACOSTA NEVAREZ,
Plaintiff,
v.

No. 16-cv-1323 MV/SMV

ROBERT M. SPEER,
Acting Secretary of the Army, 1
Defendant.
ORDER EXTENDING SHOW-CAUSE RESPONSE DEADLINE
AND DENYING MOTION FOR APPOINTMENT OF COUNSEL
THIS MATTER is before the Court on its Order to Show Cause [Doc. 7] issued on
May 5, 2017, and on Plaintiff’s Motion for Appointment of Counsel [Doc. 8], filed on May 17,
2017. The Court will extend Plaintiff’s deadline to show cause to June 9, 2017, and deny his
Motion for Appointment of Counsel.
Plaintiff filed his Complaint with this Court on December 5, 2016. [Doc. 1]. Plaintiff
had 90 days from filing the Complaint, or until March 6, 2017, to serve the Defendant with
process. Fed. R. Civ. P. 4(m) (2015). That date has passed, and there is nothing on the record
showing that Plaintiff has served Defendant. Accordingly, on May 5, 2017, the Court ordered
Plaintiff to show cause (no later than May 26, 2017), why his claims should not be dismissed
without prejudice for failure to timely serve Defendant. [Doc. 7] (citing Fed. R. Civ. P. 4(m);
Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)).

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Robert M. Speer is now the Acting Secretary of the Army. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Robert M. Speer should be substituted for Secretary Eric K. Fanning as the defendant in this suit.

In response to the Order to Show Cause, Plaintiff explained that he did not understand
how he had failed to comply with Rule 4 and asked the Court to appoint him an attorney.
[Doc. 8]. Plaintiff stated that he “filed [his] complaint to the Secretary of the Army by mail and
by fax in accordance to the instructions from the Local Rules of Civil Procedures.” Id. at 1
(errors in original). It is unclear whether Plaintiff means to say that he filed his complaint in this
Court by mail and by fax, or whether he means to say that he did serve Defendant by mail and by
fax.
It appears that the Clerk’s Office provided Plaintiff a copy of the Guide for Pro Se
Litigants on December 5, 2016, when he filed his complaint. (If Plaintiff does not have a copy,
he may obtain one

from

the Clerk’s

Office or from the Court’s

website at

http://www.nmd.uscourts.gov/representing-yourself-pro-se.) Plaintiff should refer to the section
entitled “Serving the Summons and Complaint.” Plaintiff must follow the instructions in this
section—and in Federal Rule of Civil Procedure 4—meticulously. He must arrange for the
summons and complaint to be served on Defendant, and he must file the appropriate paper on the
record showing that Defendant has been served. Plaintiff must also respond to the Order to
Show Cause, and the deadline to do so will be extended to June 9, 2017.
The Court will deny Plaintiff’s motion for appointment of counsel.

There is no

constitutional right to counsel in a civil case. Johnson v. Johnson, 466 F.3d 1213, 1217 (10th
Cir. 2006).

In fact, United States District Courts lack the authority to appoint counsel to

represent civil litigants. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989);
Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016). In certain exceptional circumstances, a

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court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1) for a
litigant who cannot afford to hire an attorney himself. Rachel, 820 F.3d at 396–37.
Here, however, Plaintiff is able to pay for an attorney. In denying his motion to proceed
under § 1915 (the same statute that allows courts to request that an attorney volunteer to
represent someone), the Court found that Plaintiff’s monthly household income was $6,243, with
monthly expenses of $3,999, and about $5,000 in savings. [Doc. 5] at 2. Based on the fact that
Plaintiff is not proceeding under § 1915 in this case, and also based on this financial information,
the Court finds that Plaintiff is able to afford counsel on his own. Thus, requesting that an
attorney volunteer to represent him is not appropriate. Plaintiff’s request for counsel will be
denied.
IT IS THEREFORE ORDERED that Plaintiff’s deadline to show good cause why his
claims should not be dismissed without prejudice for failure to comply with the service provision
of Rule 4(m) is extended to June 9, 2017. See Espinoza v. United States, 52 F.3d 838, 841 (10th
Cir. 1995).
IT IS FURTHER ORDERED that Plaintiff’s request for appointment of counsel
[Doc. 8] is DENIED.
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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