(PC) Godinez v. Kernan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL GODINEZ, Case No. 2:18-cv-02921-TLN-JDP (PC) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR AN ORDER 13 v. DIRECTING THE U.S. MARSHAL TO EFFECT SERVICE ON DEFENDANT 14 SCOTT KERNAN, et al., ADAMS AND MOTION FOR APPOINTMENT OF COUNSEL 15 Defendants. ECF Nos. 59 & 61 16 17 18 On January 13, 2021, plaintiff was ordered to complete and return to the court, within 19 thirty days, the summons, one USM-285 form, and the copies of his complaint that are required to 20 complete service on defendant Darrel Adams.1 ECF No. 56. Plaintiff timely submitted the 21 required documents. ECF No. 57. However, the USM-285 form that he submitted omitted an 22 address for Adams, which the U.S. Marshal needs to effectuate service. Accordingly, the court 23 directed plaintiff to submit a completed USM-285 form including an address for defendant 24 Adams. The court also warned plaintiff that failure to provide a completed form with Adams’s 25 address could result in a recommendation that Adams be dismissed from this action for failure to 26 27 1 The court previously found that plaintiff’s fourth amended complaint stated claims against six defendants. ECF No. 39. Except for defendant Adams, all other defendants have 28 appeared in this action and filed an answer to the fourth amended complaint. ECF No. 52. 1 timely effectuate service of process. ECF No. 58. 2 Plaintiff has since filed a motion asking that the court direct the U.S. Marshal to serve 3 Adams. ECF No. 59. He has also submitted a new USM-285 form, but he has again failed to 4 provide an address for Adams. Since plaintiff has not provided information necessary to locate 5 defendant Adams, the U.S. Marshal remains unable to serve that defendant and plaintiff’s motion, 6 ECF No. 59, must be denied. Rather than dismiss the claims against Adams for failure to timely 7 effectuate service, see Fed. R. Civ. P. 4(m), the court will refer this case to the Post-Screening 8 Alternative Dispute Resolution (“ADR”) Project to allow the parties who have appeared to 9 participate in a settlement conference.2 If the case does not settle, the court will issue a 10 scheduling order and permit plaintiff to serve discovery on the other named defendants so that 11 plaintiff may attempt to locate defendant Adams. 12 Plaintiff has also filed a motion for appointment of counsel.3 ECF No. 61. Plaintiff does 13 not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 14 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent 15 plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The 16 court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court 17 may request an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 18 1525. However, without a means to compensate counsel, the court will seek volunteer counsel 19 only in exceptional circumstances. In determining whether such circumstances exist, “the district 20 court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] 21 to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 22 F.3d at 1525 (internal quotation marks and citations omitted). Having considered these factors, 23 the court does find not that there are exceptional circumstances warranting appointment of 24 counsel. Plaintiff’s motion, ECF No. 61, is therefore denied. 25 Accordingly, IT IS HEREBY ORDERED that: 26 2 An order referring this case to the court’s ADR Project is issued concurrently with this 27 order. 3 That motion also inquires about the status of this case. ECF No. 61 at 1. In light of this 28 order, plaintiff’s request for status is moot. 1 1. Plaintiffs motion for an order directing the U.S. Marshal to serve process on defendant 2 | Adams, ECF No. 59, is denied without prejudice. 3 2. Plaintiffs motion for appointment of counsel, ECF No. 61, is denied without 4 | prejudice. 5 6 IT IS SO ORDERED. Dated: _ March 29, 2022 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28