Perez v. Cagle et al
Filing
71
MEMORANDUM OPINION AND ORDER -- The Court DENIES Defendant Adams': (1) Motion to Dismiss and (2) request for appointment of counsel. As more fully set out. Signed by Magistrate Judge Shon T. Erwin on 12/13/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SALVADOR PEREZ, JR.,
Plaintiff,
v.
FNU CAGLE, et al.,
Defendants.
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Case No. CIV-16-809-STE
MEMORANDUM OPINION AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, has brought this
action under 42 U.S.C. § 1983, alleging a violation of his rights under the United States
Constitution. (ECF No. 1). The parties have consented to jurisdiction over this matter by
a United States magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF Nos. 61 & 70). At
issue before the Court is a Motion to Dismiss filed by Defendant Adams. (ECF No. 65).
In the motion, Mr. Adams also requests appointment of counsel. (ECF No. 65:3). For
the reasons discussed below, the Court DENIES Defendant Adams’ Motion to Dismiss
and request for appointment of counsel.
I.
PROCEDURAL BACKGROUND
Mr. Perez has sued Defendant Adams, alleging that he beat and sexually assaulted
Plaintiff in violation of the Eighth Amendment. (ECF No. 1:2, 4, 5). Upon initial review of
the Complaint, the Court concluded that Plaintiff had stated a valid claim against
Defendant Adams in his individual capacity, limited to the recovery of monetary damages.
(ECF No. 22).1
II.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the court “‘must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most favorable
to . . . [P]laintiff.’” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (citation
omitted). To survive dismissal, Plaintiff's “complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Plausible” in this context does not
mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct,” then the plaintiff
has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic
v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to
weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success, but also to inform the defendants of the actual grounds of the claim
against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). “The
plausibility standard is not akin to a probability requirement, but it asks for more than a
sheer possibility. . . .” Iqbal, 556 U.S. at 662 (internal quotation marks and citation
omitted).
As previously discussed, an action under 42 U.S.C. § 1983 requires a deprivation by an individual
“acting under color of state law.” See ECF No. 9:12. State action has been attributed to Defendant
Adams due to Plaintiff’s allegations that Defendant Adams had violated Plaintiff’s constitutional
rights by acting in concert with state officials, namely Defendants Cagle and Neeley. See ECF No.
9:14.
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A complaint fails to state a claim when it lacks factual allegations sufficient “to
raise a right to relief above the speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. (footnote
and citation omitted). Bare legal conclusions in a complaint are not assumed to be true;
legal conclusions “must be supported by factual allegations” to state a claim upon which
relief may be granted. Iqbal, 556 U.S. at 662.
“[A] pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Whether a complaint contains sufficient facts to avoid
dismissal is context-specific and is determined through a court’s application of “judicial
experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627
F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
III.
DENIAL OF THE MOTION TO DISMISS
Mr. Perez has alleged that on October 16, 2014, Defendant Adams sexually
assaulted Plaintiff “by pinning [him] against the cell sink and rubbing his penis area
against [Plaintiff’s] butt area for several seconds.” (ECF No. 1:4). Plaintiff also alleges
that on November 10, 2014, he was raped, beaten, and choked by Defendant Adams.
(ECF No. 1:5). The Court has previously determined that Plaintiff’s allegations state a
valid claim against Defendant Adams. (ECF Nos. 9 & 22). Defendant Adams has filed a
Motion to Dismiss, denying: (1) that he had beat and/or sexually assaulted Plaintiff and
(2) that he had acted at the behest of or in concert with Defendants Cagle and Neeley.
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(ECF No. 65).2 In his Motion to Dismiss, Defendant Adams denies Plaintiff’s allegations,3
but he does not offer any sort of legal theory in support of his Motion to Dismiss. See
ECF No. 65. Accordingly, the Court denies Defendant Adams’ Motion to Dismiss. See
Iqbal, 556 U.S. at 662 (“a complaint that states a plausible claim for relief survives a
motion to dismiss.”).
IV.
DENIAL OF DEFENDANT’S REQUEST FOR APPOINTMENT OF COUNSEL
In his “Request for Relief,” Defendant Adams requests appointment of counsel.
(ECF No. 65:3). The Court denies Defendant’s request.
Courts are not authorized to appoint counsel in § 1983 cases; instead, courts can
only “request” an attorney to take the case. Prison Litigation Reform Act, 28 U.S.C. §
1915(e)(1); see Mills v. Fischer, 645 F.3d 176, 177 n.3 (2d Cir. 2011) (“A district court is
empowered only to ‘request’ an attorney to represent an [in forma pauperis] plaintiff, §
1915(e)(1), but case law commonly refers to the arrangement as ‘appointed’ counsel.”);
see generally Mallard v. U.S. Dist. Court, 490 U.S. 296, 309 (1989) (interpreting similar
statutory language, in an earlier version of the statute, to prohibit “coercive appointments
of counsel”).
In addition to the discretionary nature of court-appointed counsel in § 1983 cases,
several other factors are relevant: (1) the merits of the claims, (2) the nature of the
In the body of the Motion to Dismiss, Defendant Adams states that Plaintiff’s allegations are
“false” and a “defamation of character.” (ECF No. 65:2). Defendant Adams also states that he
would like for “charges and monetary damages to be filed against the Plaintiff Salvador Perez for
committing perjury and filing false claims.” (ECF No. 65:2). However, in his request for relief, Mr.
Adams has only requested dismissal of the claims against him and appointment of counsel. If Mr.
Adams would like to file a counterclaim against Plaintiff, he may do so in a separate pleading.
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(ECF No. 65:2).
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claims, (3) plaintiff’s ability to present the claims, and (4) the complexity of the issues.
See Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). As noted by the Tenth Circuit
Court of Appeals in Rachel,
Each year, the district court receives hundreds of requests for legal
representation and only a small number of attorneys are available to accept
these requests. Accordingly, the district court must use discretion in
deciding which cases warrant a request for counsel. To do otherwise would
deprive clearly deserving litigants of an opportunity to obtain legal
representation. The dilemma is unfortunate for litigants like Mr. Rachel. But
the dilemma was not the district court's fault; that dilemma was the product
of the court’s lack of authority to compel legal representation or to
reimburse attorneys for their time.
Id.
The Court has considered the factors and circumstances of this case bearing on
the need for counsel. Defendant has offered no argument regarding why the Court should
request that counsel be appointed. Therefore, the Court denies Defendant Adams’
request for appointment of counsel without prejudice to his ability to request counsel at
some later stage in these proceedings, if appropriate.
ORDER
The Court DENIES Defendant Adams’: (1) Motion to Dismiss and (2) request for
appointment of counsel.
ENTERED on December 13, 2018.
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