Parker v. State of Utah et al
Filing
9
MEMORANDUM DECISION and Order-denying 4 Motion for Service of Process. ; denying 5 Motion to Appoint Counsel ; granting 6 Motion for Leave to File. Signed by Magistrate Judge Paul M. Warner on 12/21/11. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
FRANK PARKER,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
Case No. 2:11-cv-1127-CW-PMW
v.
STATE OF UTAH and SUSANNE
GUSTIN,
Defendants.
District Judge Clark Waddoups
Magistrate Judge Paul M. Warner
District Judge Clark Waddoups referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).1 At the outset, the court notes that Frank Parker
(“Plaintiff”) has been permitted to proceed in forma pauperis under 28 U.S.C. § 1915 (“IFP
statute”).2 Before the court are Plaintiff’s motion for service of process,3 motion for appointment
of counsel,4 and motion to accept a supplementary pleading in support of his complaint.5
The court first addresses Plaintiff’s motion for service of process. When a case is
proceeding under the IFP statute, the officers of the court are required to issue and serve all
1
See docket no. 8.
2
See docket nos. 1, 2.
3
See docket no. 4.
4
See docket no. 5.
5
See docket no. 6.
process and perform all duties related to service of process. See 28 U.S.C. § 1915(d). At the
same time, the IFP statute allows the court to screen the complaint in such a case to determine
whether it should be served upon the named defendants or dismissed. See 28 U.S.C.
§ 1915(e)(2)(B). In this case, the court has not yet completed that screening process and,
consequently, has not yet made a determination about whether Plaintiff’s complaint in this case
should indeed be served on the named defendants. For that reason, Plaintiff’s motion for service
of process is unnecessary and, accordingly, is denied. As indicated above, the court will screen
Plaintiff’s complaint and determine whether it should be served on the named defendants. It is
unnecessary for Plaintiff to take any action to trigger that process.
The court turns next to Plaintiff’s motion for appointment of counsel. “The appointment
of counsel in a civil case is left to the sound discretion of the district court.” Shabazz v. Askins,
14 F.3d 533, 535 (10th Cir. 1994). Although “[t]here is no constitutional right to appointed
counsel in a civil case,” Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1988) (per curiam), the
court may appoint an attorney to represent a litigant who is unable to afford counsel. See 28
U.S.C. § 1915(e)(1). When deciding whether to appoint counsel, the court must consider certain
factors, “including the merits of the litigant’s claims, the nature of the factual issues raised in the
claims, the litigant’s ability to present his claims, and the complexity of the legal issues raised by
the claims.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quotations and citations
omitted).
The court turns to considering those factors in this case. First, the merits of Plaintiff’s
claims are unclear at this point because the court has not yet completed the above-referenced
2
screening process. Second, concerning Plaintiff’s ability to present his claims, there is no
indication that he is incapacitated or unable to pursue this case adequately. Finally, with respect
to the complexity of this case, the court has determined that the factual and legal issues raised by
Plaintiff’s complaint do not appear to be complicated or difficult to explain. Further, at this stage
of Plaintiff’s case, the court is concerned only with the sufficiency of Plaintiff’s allegations, and
the court does not believe that appointed counsel would materially assist Plaintiff in describing
the facts surrounding his alleged injuries. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (stating that “a pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury”). For these reasons, Plaintiff’s motion for appointment of
counsel is denied at this time. If it appears that counsel may be needed or of specific help after
the case is fully screened, however, the court may then ask an attorney to appear pro bono on
Plaintiff’s behalf.
Finally, the court addresses Plaintiff’s motion to accept a supplementary pleading in
support of his complaint. That motion is granted. The court will consider Plaintiff’s
supplementary pleading along with his complaint.
In summary, IT IS HEREBY ORDERED:
Plaintiff’s motion for service of process6 and motion for appointment of counsel7
1.
are DENIED.
6
See docket no. 4.
7
See docket no. 5.
3
2.
Plaintiff’s motion to accept a supplementary pleading in support of his complaint8
is GRANTED.
IT IS SO ORDERED.
DATED this 21st day of December, 2011.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
8
See docket no. 6.
4
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