(PC) Sekona v. Perez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 1:19-cv-00400-JLT-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 62.) 14 R. PEREZ, et al., ORDER ADDRESSING THE MATTER OF UNSERVED DEFENDANTS AND 15 Defendants. DISCHARGING ORDER TO SHOW CAUSE (ECF No. 60.) 16 17 18 I. BACKGROUND 19 Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pre se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the Third 21 Amended Complaint filed by Plaintiff on December 13, 2021, against Correctional Officers 22 Perez, Muniz, Sims, and Maldonado for failure to protect Plaintiff in violation of the Eighth 23 Amendment. (ECF No. 39.) 24 Defendants Muniz and Sims were successfully served with process, but on September 8, 25 2022, the United States Marshal (“Marshal”) returned the summonses unexecuted for defendants 26 Maldonado and R. Perez. (ECF No. 59.) The Marshal indicated that on March 22, 2022, the 27 Litigation Coordinator at Kern Valley State Prison reported that there are no correctional officers 28 named R. Perez or Maldonado at that facility. (Id.) 1 On September 15, 2022, the Court issued an order for Plaintiff to show cause why 2 Defendants R. Perez and Maldonado should not be dismissed from this case based on Plaintiff’s 3 failure to provide the Marshal with addresses for Defendants R. Perez and Maldonado for service 4 of process. (ECF No. 60.) 5 On September 30, 2022, Plaintiff responded to the Court’s order to show cause and also 6 filed a motion seeking the appointment of counsel. (ECF Nos. 61, 62.) On October 7, 2022, 7 Defendants Sims and Munoz filed an opposition to Plaintiff’s motion for appointment of counsel. 8 (ECF No. 63.) 9 II. APPOINTMENT OF COUNSEL 10 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 11 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 12 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 13 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 14 certain exceptional circumstances the court may request the voluntary assistance of counsel 15 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 16 Without a reasonable method of securing and compensating counsel, the court will seek 17 volunteer counsel only in the most serious and exceptional cases. In determining whether 18 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 19 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 20 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 21 Discussion 22 Plaintiff seeks appointment of counsel to assist him with finding and identifying 23 Defendants Perez and Maldonado to enable service of process by the Marshal. Plaintiff states 24 that he knows no other way to find out where these Defendants are currently located. He believes 25 that these Defendants retired from the California Department of Corrections and Rehabilitation. 26 In opposition to the motion for appointment of counsel, Defendants Sims and Munoz 27 argue that Plaintiff’s motion should not be granted because he has not shown special 28 circumstances, or that his liberty is at stake. Defendants assert that because Plaintiff is already 1 incarcerated he is not subject to loss of his physical liberty should he not prevail in this case, and 2 therefore he does not have a constitutional right to counsel. Defendants argue that Plaintiff 3 merely alleges that he should be appointed counsel because of public interest, support of the 4 constitution, and for fairness and justice under the due process clause However, and though 5 important, there do not establish exceptional circumstances that would entitle him to the 6 appointment of counsel. In addition, Defendants assert that Plaintiff has demonstrated his ability 7 to articulate his claims pro se because he has litigated this case to this point independently, and 8 he has litigated other cases pro se. Finally, Defendants argue that there is no evidence showing 9 that Plaintiff is likely to prevail on the merits of this case. 10 Defendants’ arguments have merit. The Court does not find the required exceptional 11 circumstances present. Plaintiff seeks appointment of counsel to assist him with locating 12 Defendants Perez and Maldonado to enable the Marshal to serve them with process. This is not 13 an exceptional circumstance under the law. While the court has found that “Plaintiff states 14 cognizable claims in the Third Amended Complaint [against] Defendants Perez, Munoz, Sims, 15 and Maldonado for failing to protect him in violation of the Eighth Amendment,” this finding is 16 not a determination that Plaintiff is likely to succeed on the merits. (ECF No. 41 at 15:7-9.) The 17 Court cannot determine at this stage of the proceedings whether Plaintiff is likely to succeed on 18 the merits. Plaintiff’s failure-to-protect claims are not complex and based on a review of the 19 record in this case, Plaintiff can adequately articulate his claims and respond to court orders. 20 Thus, the Court does not find the required exceptional circumstances, and Plaintiff’s motion for 21 appointment of counsel shall be denied without prejudice to renewal of the motion at a later stage 22 of the proceedings. 23 III. PLAINTIFF’S RESPONSE TO THE ORDER TO SHOW CAUSE 24 In response to the Court’s order to show cause, Plaintiff argues that his unserved 25 Defendants, Correctional Officers R. Perez and Maldonado, should not be dismissed from this 26 case because he is proceeding in forma pauperis and he furnished the Defendants’ last known 27 addresses to the Marshal to assist with their identification. Plaintiff believes that the unserved 28 Defendants retired and the CDCR knows where they are but has not informed the Marshal. 1 Plaintiff requests that the Marshal use assistance from a Special Investigator if the Litigation 2 Office is unable to assist in identifying the Defendants, or in locating officers who have retired. 3 Service Of Process -- Rule 4 4 Pursuant to Rule 4(m) of the Federal Rules for Civil Procedure, if a defendant is not 5 served within 90 days after the complaint is filed, the court - - on motion or on its own after 6 notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order 7 that service be made within a specified time. But if the plaintiff shows good cause for the failure, 8 the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). In cases 9 involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall 10 serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “An incarcerated pro se plaintiff 11 proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons 12 and complaint and . . . should not be penalized by having his action dismissed for failure to effect 13 service where the U.S. Marshal or the court clerk has failed to perform his [or her] duties.” 14 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 15 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 16 “So long as the prisoner has furnished the information necessary to identify the defendant, the 17 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 18 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se 19 plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of 20 the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 21 appropriate. Walker, 14 F.3d at 1421-22. 22 Discussion 23 The United States Marshal may command all necessary assistance from the Office of 24 Legal Affairs for CDCR, and may seek the assistance of a Special Investigator if the Litigation 25 Officer at the institution is unable to assist in identifying and/or locating defendants. (ECF No. 26 44 at 4:1-4.) Here, it is not apparent from a reading of the Marshal’s return of service unexecuted 27 as to Defendants R. Perez and Maldonado (ECF No. 59) that the Marshal used the assistance of 28 CDCR’s Legal Affairs Department, or a Special Investigator to locate the unserved Defendants. 1 Therefore, by separate order, the Court shall direct the Marshal to attempt re-service on the 2 unserved Defendants using the assistance of CDCR’s Legal Affairs Department and a Special 3 Investigator. 4 IV. CONCLUSION 5 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motion for the appointment of counsel, filed on September 30, 2022, is 7 DENIED without prejudice; 8 2. The Court’s order to show cause, issued on September 15, 2022, is 9 DISCHARGED; and 10 3. The Court shall issue a separate order directing the Marshal to attempt re-service 11 on Defendants Perez and Maldonado using the assistance of CDCR’s Legal Affairs Department 12 and a Special Investigator. 13 IT IS SO ORDERED. 14 15 Dated: October 11, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28