Bloomquist v. Misner
Filing
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MEMORANDUM DECISION denying 4 Motion for Service of Process. ; denying 5 Motion to Appoint Counsel. Plaintiff must file any amended complaint within thirty (30) days of this Order. Signed by Magistrate Judge Dustin B. Pead on 9/12/16. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DARRELL C. BLOOMQUIST,
MEMORANDUM DECISION
Plaintiff,
Case No. 2:15-cv-00882-JNP-DBP
v.
District Judge Jill N. Parrish
MICHAEL MISNER,
Magistrate Judge Dustin B. Pead
Defendant.
INTRODUCTION
This matter was referred to the court under 28 U.S.C. § 636(b)(1)(B). (ECF No. 6.) On
December 15, 2015, the court granted pro se Plaintiff Darrell C. Bloomquist leave to proceed in
forma pauperis. (ECF No. 2.) Plaintiff’s complaint alleges that Defendant Michael Misner
violated Plaintiff’s civil rights by “fail[ing] to properly represent [Plaintiff].” (ECF No. 3.)
Defendant was allegedly appointed to represent Plaintiff on certain criminal charges in Utah state
court. The case is presently before the court on Plaintiff’s Motion to Appoint Counsel (ECF No.
5.) and Motion for Service of Process. (ECF No. 4.)
ANALYSIS
I.
Plaintiff’s motion for appointment of counsel
Plaintiff requests appointment of counsel. A plaintiff in a civil case has no statutory or
constitutional right to the appointment of counsel, though appointment is permitted in certain
circumstances. See 28 U.S.C. § 1915(e)(1). “The burden is on the applicant to convince the court
that there is sufficient merit to his claim to warrant the appointment of counsel.” Hill v.
SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004).
Here, Plaintiff filed a terse request for counsel, citing 42 U.S.C. § 1985. (ECF No. 5.) That
provision does not provide for appointment of counsel. Additionally, the court finds Plaintiff’s
claims may not be meritorious, as discussed below. Infra Part II. Further, the legal and factual
issues do not appear particularly complex. Nonetheless, the court recognizes that counsel may
subsequently become appropriate or necessary. Accordingly, the court will deny Plaintiff’s
motion to appoint counsel without prejudice. Plaintiff may renew the motion if circumstances
later justify appointment of counsel.
II.
Plaintiff’s motion for service of process
Next, Plaintiff requests the court serve process upon the single defendant in this case, who is
Plaintiff’s former counsel in a state criminal matter. (ECF No. 4.). The court declines to serve
process at this time for two reasons. First, Rule 8 demands more than an “unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While a pro se complaint must be construed liberally; a court cannot act as an advocate for a pro
se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff’s complaint lacks
detail regarding the conduct he believes was wrongful. Plaintiff alleges that counsel in the
criminal matter “failed to properly represent the [P]laintiff.” (ECF No. 3.) This does not afford
Defendant notice of the claims against him or allow him to prepare a meaningful response. If
Plaintiff choses to continue this lawsuit by filing an amended complaint, he should keep in mind
the general admonition for pro se plaintiffs proceeding in the Tenth Circuit. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal
court, a complaint must explain what each defendant did to [the plaintiff]; when the defendant
did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the
plaintiff believes the defendant violated.”).
Second, the court has concerns about the legal viability of Plaintiff’s complaint. To properly
allege a violation of 42 U.S.C. § 1983, Plaintiff “must allege that some person has deprived him
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of a federal right,” and “that the person who has deprived him of that right acted under color of
state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Supreme Court has
held that “a public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.” Hunt v. Bennett, 17
F.3d 1263, 1268 (10th Cir. 1994) (quoting Polk County v. Dodson, 454 U.S. 312 (1981). Given
these deficiencies, service of process is not now appropriate.
Nonetheless, given Plaintiff’s pro se status and the terse nature of his factual allegations, the
court cannot be certain that Plaintiff is unable to plead a cause of action and will thus afford him
an opportunity to amend. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990) (“[If]
it is at all possible that the party against whom the dismissal is directed can correct the defect in
the pleading or state a claim for relief, the court should [afford] leave to amend.”) Accordingly,
Plaintiff is directed to file an amended complaint setting forth proper claims within thirty (30)
days. Failure to do so will result in a recommendation that Plaintiff’s complaint be dismissed.
See 28 U.S.C. § 1915(e)(2)(B)(ii).
ORDER
Based on the foregoing, the court
DENIES Plaintiff’s motion to appoint counsel without prejudice, (ECF No. 5) and
DENIES Plaintiff’s motion for service of process without prejudice. (ECF No. 4.)
Plaintiff must file any amended complaint within thirty (30) days of this Order.
Dated this 12th day of September 2016.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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