Ramos v. Medina
MEMORANDUM DECISION denying 4 Motion for Service of Process ; denying 5 Motion to Appoint Counsel. Signed by Magistrate Judge Paul M. Warner on 10/24/2012. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Case No. 2:12-cv-808-CW-PMW
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 The specific matters before the court are Michael
Ramos’s (“Plaintiff”) motion for service of process2 and motion for appointment of counsel.3
At the outset, the court notes that Plaintiff has been permitted to proceed in forma
pauperis in this case under 28 U.S.C. § 1915 (“IFP statute”).4 Accordingly, and in addition to the
specific matters referenced above, the court will address the sufficiency of Plaintiff’s complaint
under the authority of the IFP statute. See 28 U.S.C. § 1915(e)(2)(B)(ii).
See docket no. 6.
See docket no. 4.
See docket no. 5.
See docket nos. 1, 2.
The court also recognizes that Plaintiff is proceeding pro se in this case. Consequently,
the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d
1183, 1187 (10th Cir. 2003).
I. Review of Complaint Under IFP Statute
Whenever the court authorizes a party to proceed without the prepayment of fees under
the IFP statute, the court is required to “dismiss the case at any time if the court determines that
. . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B)(ii). In determining whether a complaint fails to state a claim for relief under the
IFP statute, the court employs the same standard used for analyzing motions to dismiss for failure
to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kay v. Bemis,
500 F.3d 1214, 1217-18 (10th Cir. 2007). Under that standard, the court “look[s] for plausibility
in th[e] complaint.” Id. at 1218 (quotations and citations omitted) (second alteration in original).
More specifically, the court “look[s] to the specific allegations in the complaint to determine
whether they plausibly support a legal claim for relief. Rather than adjudging whether a claim is
‘improbable,’ ‘[f]actual allegations [in a complaint] must be enough to raise a right to relief
above the speculative level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)) (other quotations and citation omitted) (second and third alterations in original).
In undertaking that analysis, the court is mindful that Plaintiff is proceeding pro se and
that “[a] pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see also, e.g., Ledbetter, 318 F.3d at 1187. At the same time, however, it is not “the
proper function of the district court to assume the role of advocate for the pro se litigant,”
Bellmon, 935 F.2d at 1110, and the court “will not supply additional facts, nor will [it] construct
a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,
[t]he broad reading of [a pro se] plaintiff’s complaint does not
relieve the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based. . . . [C]onclusory
allegations without supporting factual averments are insufficient to
state a claim on which relief can be based. This is so because 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. Moreover, in analyzing the sufficiency of the
plaintiff’s complaint, the court need accept as true only the
plaintiff’s well-pleaded factual contentions, not his conclusory
Bellmon, 935 F.2d at 1110 (citations omitted).
Even when the court liberally construes Plaintiff’s complaint, the court concludes that
Plaintiff has failed to provide any well-pleaded factual allegations to support his alleged claim for
relief. The preprinted civil rights complaint Plaintiff has filed fails to identify any basis for this
court’s jurisdiction and contains very few factual allegations. Plaintiff’s main allegation appears
to be that he was somehow wrongfully deprived of custody of his daughters. However, Plaintiff
fails to explain how the defendant named in his complaint is connected to that allegation.
Further, although Plaintiff has submitted an exhibit to his complaint, Plaintiff has not attempted
to explain the exhibit’s relevance or connection to his alleged claim. Instead, Plaintiff simply
asks the court to review the documents contained in the exhibit. The court has reviewed those
documents, and although it is not entirely clear, they appear to be documents related to Plaintiff’s
state court custody proceedings.
For these reasons, the court concludes that Plaintiff’s current complaint fails to state a
claim on which relief can be granted. At the same time, however, the court recognizes that
“[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious
that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Kay, 500 F.3d at 1217 (quotations and citation omitted). Accordingly,
Plaintiff is hereby provided with an opportunity to amend his current complaint. Plaintiff shall
file an amended complaint that complies with the requirements set forth in the above-referenced
authorities on or before November 26, 2012. Failure to do so will result in a recommendation to
Judge Waddoups that this case be dismissed.
II. Motion for Service of Process
The court turns next to 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
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 determined that Plaintiff’s complaint fails to state a
claim on which relief can be granted and provided Plaintiff with an opportunity to amend his
complaint. Once the deadline for the filing of Plaintiff’s amended complaint has passed, the
court will complete the screening process at its earliest convenience and determine whether
Plaintiff’s amended complaint should indeed be served on the named defendant(s). It is
unnecessary for Plaintiff to take any action to trigger that process. For that reason, Plaintiff’s
motion for service of process5 is unnecessary and, accordingly, is DENIED.
III. Motion for Appointment of Counsel
Finally, the court addresses 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
screening process with respect to Plaintiff’s amended complaint. 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
See docket no. 4.
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.,
Bellmon, 935 F.2d at 1110 (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 counsel6 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.
IT IS SO ORDERED.
DATED this 24th day of October, 2012.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
See docket no. 5.
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