Valdez v. Salt Lake City Police Department et al

Filing 7

MEMORANDUM DECISION denying 4 Motion to Appoint Counsel; granting 5 Motion for Service of Process. The United States Marshals Service shall serve a summons, a copy of Plaintiffs complaint, and a copy of this Order upon Defendants FNU Hopkins, Kristopher Jeppsen, Salt Lake City Police Department. Signed by Magistrate Judge Brooke C. Wells on 01/22/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ILENE ROSALIA VALDEZ,

MEMORANDUM DECISION AND ORDER
DENYING

Plaintiff,
v.

Case No. 2:13-cv-1135-RJS-BCW

SALT LAKE CITY POLICE DEPARTMENT, District Judge Robert J. Shelby
et al.,
Defendants.
Magistrate Judge Brooke Wells
Pro se Plaintiff Ilene Rosalia Valdez (“Plaintiff”), proceeding in forma pauperis filed her
Complaint in this case on January 6, 2014.1 On January 8, 2014, District Judge Robert J. Shelby
referred this case to Magistrate Judge Brooke C. Wells pursuant to 28 U.S.C. § 636(b)(1)(B).2
Before the Court is Plaintiff’s Motion to Appoint Counsel3 and Motion for Service of Process.4
The Court has carefully reviewed these Motions and for the reasons set forth more fully below,
DENIES Plaintiff’s Motion to Appoint Counsel and GRANTS Plaintiff’s Motion for Service of
Process.
ANALYSIS
Plaintiff brings this case against the Salt Lake City Police Department and two of its
officers alleging violations of her constitutional rights. Specifically, Plaintiff alleges two causes
of action under the 4th and 14th Amendments to the U.S. Constitution. In essence, Plaintiff’s
allegations stem from a search of her home by officers in relation to the arrest of Plaintiff’s son
for “armed burglary” charges.

1

Docket no. 2.
Docket no. 6.
3
Docket no. 4.
4
Docket no. 5.
2

A. Plaintiff’s Motion to Appoint Counsel
Generally, as a civil litigant, Plaintiff has no constitutional right to counsel.5 28 U.S.C. §
1915, which pertains to proceedings in forma pauperis (“IFP Statute”), provides “[t]he court may
request an attorney to represent any person unable to afford counsel.”6 However, the
appointment of counsel under this statute is within the discretion of the court.7 “The burden is
upon the applicant requesting counsel to convince the court that there is sufficient merit to his [or
her] claim to warrant the appointment of counsel.”8 When deciding whether to appoint counsel,
a court should consider a variety of 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 [or her] claims,
and the complexity of the legal issues raised by those claims.’”9
At the outset, the Court notes Plaintiff’s motion does not provide any reasons as to why
this Court should appoint counsel in this case. However, in undertaking the analysis of the
foregoing factors with regard to appointment of counsel under the IFP Statute, 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.”10
In considering the foregoing factors, including the nature of the factual issues presented
in Plaintiff’s Complaint, the Court concludes for purposes of proceeding at this preliminary
juncture, Plaintiff has presented an adequate legal and factual basis to persuade the Court that

5

See Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)(citing Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.
1969)).
6
28 U.S.C. § 1915(e)(1).
7
See McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
8
Id. (citing U.S. v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973).
9
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)(quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991).
10
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)(internal citations omitted); see also Ledbetter 318 F.3d
1183, 1187 (10th Cir. 2003).

2

Plaintiff’s claims are plausible and rise above the speculative level.11 However, the nature of the
factual issues contained in Plaintiff’s Complaint are not overly complex. Further, although
Plaintiff claims to have been “traumatized” and having anxiety and nightmares over the facts
underlying this lawsuit, the Court does not find Plaintiff to be incapacitated or unable to
adequately pursue this matter at this stage in the litigation. Therefore, on balance, the Court
finds Plaintiff has not persuaded the Court that counsel is required at this time and DENIES
Plaintiff’s Motion for Appointment of Counsel.
B. 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.12 Based upon
review of the Complaint, and the Court’s finding that the Complaint has presented plausible
causes of action, the Court concludes that official service of process is warranted and GRANTS
Plaintiff’s Motion.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED:
1) Plaintiff’s Motion to Appoint Counsel13 is DENIED. However, if, after the case
develops further, it appears that counsel may be needed, without further prompting from
Plaintiff, the Court will ask an attorney to appear pro bono on Plaintiff’s behalf. No
further motions for appointed counsel shall be accepted by the Court.
2) Plaintiff’s Motion for Service of Process14is GRANTED. Pursuant to 28 U.S.C. § 1915
(d), “the officers of the court shall issue and serve all process” in this case.

11

See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)(internal citations omitted).
See 28 U.S.C. § 1915(d).
13
Docket no. 4.
14
Docket no. 5.
12

3

DATED this 22 January 2014.

Brooke C. Wells
United States Magistrate Judge

4