Castellano v. Adamson

Filing 8

MEMORANDUM DECISION and Order granting 4 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 Defendant Quinn Jay Adamson; denying 5 Motion to Appoint Counsel. Signed by Magistrate Judge Brooke C. Wells on 10/1/14. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JOSEPH ANTHONY CASTELLANO,
Plaintiff,
v.
QUINN JAY ADAMSON,
Defendant.

MEMORANDUM DECISION AND ORDER
DENYING MOTION FOR APPOINTMENT
OF COUNSEL WITHOUT PREJUDICE and
GRANTING MOTION FOR SERVICE OF
PROCESS
Case No. 2:14-cv-615
District Judge Dee Benson
Magistrate Judge Brooke Wells

Pro se Plaintiff Joseph A. Castellano (“Plaintiff”), proceeding in forma pauperis1 filed
his Complaint in this case on August 28, 2014.2 On September 10, 2014, District Judge Dee
Benson referred this case to Magistrate Judge Brooke C. Wells pursuant to 28 U.S.C. §
636(b)(1)(B).3 Before the Court is Plaintiff’s Motion for Service of Process4 and Motion to
Appoint Counsel.5
The Court has carefully reviewed these Motions and for the reasons set forth more fully
below, DENIES WITHOUT PREJUDICE Plaintiff’s Motion to Appoint Counsel and
GRANTS Plaintiff’s Motion for Service of Process.
ANALYSIS
Plaintiff brings this case against Quinn Jay Adamson who Plaintiff alleges is a Detective
with the American Fork Police Department. Plaintiff alleges his civil rights were violated when

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Docket no. 2.
Docket no. 3.
3
Docket no. 7.
4
Docket no. 4.
5
Docket no. 5.
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Defendant Adamson “deprived Plaintiff of liberty and pursuit of happiness by arresting and
removing plaintiff from his place of work without necessary documents.”6
A. Motion to Appoint Counsel
Generally, as a civil litigant, Plaintiff has no constitutional right to counsel.7 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.”8 However, the
appointment of counsel under this statute is within the discretion of the court.9 “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.”10 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.’”11
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.”12

6

Complaint, docket no. 3 at p. 4.
See Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)(citing Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.
1969)).
8
28 U.S.C. § 1915(e)(1).
9
See McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
10
Id. (citing U.S. v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973).
11
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)(quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991).
12
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).
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2

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
Plaintiff’s claims are plausible and rise above the speculative level.13 However, the factual
issues contained in Plaintiff’s Complaint are not overly complex. Although Plaintiff claims to
have “suffered mental anguish with constant fear of defendant entering my place of work and/or
home,” 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. 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.14 Based upon a
review of the Complaint, and the Court’s finding that the Complaint has presented a plausible
cause 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 Counsel15 is DENIED without prejudice. 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.
13

See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)(internal citations omitted).
See 28 U.S.C.§ 1915(d).
15
Docket no. 5.
14

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2) Plaintiff’s Motion for Service of Process is GRANTED. Pursuant to 28 U.S.C. §
1915(d), “the officers of the court shall issue and serve all process” in this case.
3) The United States Marshal serve shall serve a copy of the Complaint and Summons upon
the following defendant(s):
Detective Quinn Jay Adamson
American Fork Police Department
75 East 80 North
American Fork, UT 84003
DATED this 1 October 2014.

Brooke C. Wells
United States Magistrate Judge

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