(PC) Sekona v. Perez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 1:19-cv-0400-JLT-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR APPOINTMENT OF COUNSEL AND INVESTIGATOR BE 14 PEREZ, et al., DENIED, AND THAT DEFENDANTS R. PEREZ AND MALDONADO BE 15 Defendants. DISMISSED FROM THIS ACTION PURSUANT TO RULE 4(m) 16 OBJECTIONS, IF ANY, DUE BY MAY 1, 17 2023 18 19 20 21 22 23 24 I. BACKGROUND 25 Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 27 Third Amended Complaint, filed December 13, 2021, against defendants R. Perez, L. Munoz, C. 28 Sims, and Maldonado (“Defendants”) for failure to protect Plaintiff in violation of the Eighth 1 Amendment.1 (ECF No. 39.) On February 17, 2022, the Court found service of the Third 2 Amended Complaint appropriate and directed e-service on all of the Defendants in this case. 3 (ECF No. 44.) 4 On March 10, 2022, the Attorney General’s Office filed a notice of intent to not waive 5 service by defendants R. Perez and Maldonado, ECF No. 47, and the Court sent service 6 documents to the United States Marshal (“Marshal”). On September 8, 2022, the Marshal filed 7 returns of service unexecuted as to defendants Maldonado and R. Perez. (ECF No. 59.) The 8 unexecuted summonses indicated that the Litigation Coordinator at Kern Valley State Prison 9 (KVSP) reported that no officers by the names Maldonado or R. Perez were found at KVSP. (Id.) 10 On October 18, 2022, the Court issued an order directing the Marshal to contact the Legal 11 Affairs Division of the CDCR to obtain current addresses for defendants R. Perez and Maldonado 12 and to serve them with process at their current addresses. (ECF No. 65.) The Marshal was again 13 unable to locate and serve defendants R. Perez and Maldonado. On November 1, 2022, the 14 Marshal filed returns of service unexecuted. (ECF No. 67.) The Marshal reported contacting 15 CDCR’s Legal Affairs Department but found no additional information to identify and locate 16 either of the two Defendants. (Id.) 17 On February 24, 2023, the Court issued an order requiring Plaintiff to show cause why 18 Defendants R. Perez and Maldonado should not be dismissed from this case for failure to serve 19 them. (ECF No. 75.) On March 23, 2023, Plaintiff responded to the order. (ECF No. 81.) 20 Plaintiff failed to provide current addresses for the two Defendants and requested Court- 21 appointed counsel and a special investigator to locate defendants R. Perez and Maldonado. (Id.) 22 II. RULE 4(m) - SERVICE OF PROCESS 23 Pursuant to Rule 4(m), 24 Time Limit for Service. If a defendant is not served within 120 days after the filing of the complaint, the courtBon motion or on its own after notice to the 25 plaintiffBmust dismiss the action without prejudice against that defendant or order that service be made within a specified time. But, if the plaintiff shows good 26 27 28 1 On February 15, 2022, the Court issued an order dismissing all other claims and defendants from this action based on for Plaintiff’s failure to state a claim. (ECF No. 43.) cause for the failure, the court must extend the time for service for an appropriate 1 period. 2 Fed. R. Civ. P. 4(m). 3 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 4 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 5 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service 6 of the summons and complaint and . . . should not be penalized by having his action dismissed 7 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 8 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 9 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 10 (1995). “So long as the prisoner has furnished the information necessary to identify the 11 defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Id. (quoting 12 Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff 13 fails to provide the Marshal with accurate and sufficient information to effect service of the 14 summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 15 appropriate. Id. at 1421-22. 16 III. DISCUSSION 17 The Court and the Marshal have exhausted the avenues available for identifying and 18 locating defendants R. Perez and Maldonado on behalf of Plaintiff, and Plaintiff appears unable 19 to provide the Marshal with a current address at which defendants R. Perez and Maldonado can 20 be located. These findings and recommendations shall act as notice to Plaintiff of the Court’s 21 intent to dismiss defendants R. Perez and Maldonado for failure to serve process. 22 A. Motion to Appoint Counsel 23 Plaintiff has requested court-appointed counsel. Plaintiff does not have a constitutional 24 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 25 and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 26 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 27 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request 28 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. The 7 fact that Plaintiff is indigent and unable to afford counsel does not make Plaintiff’s case 8 exceptional. Moreover, based on a review of the record in this case the Court finds that Plaintiff 9 can adequately articulate his claims. Thus, the court does not find the required exceptional 10 circumstances and therefore Plaintiff’s motion for appointment of counsel should be denied 11 without prejudice to renewal of the motion at a later stage of the proceedings. 12 B. Motion for Court-appointed Investigator 13 Plaintiff requests the Court to appoint an investigator to assist him with finding current 14 addresses for defendants R. Perez and Maldonado, to enable service of process. It is well settled 15 that “there is no statutory authorization for a court-appointed investigator for civil litigants 16 proceeding in forma pauperis.” Witkin v. Lotersztain, No. 219CV0406TLNKJNP, 2022 WL 17 7099719, at *2 (E.D. Cal. Oct. 12, 2022) (citing Snow v. Mar, 785 F. App’x 465, 466 (9th Cir. 18 2019) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 n.7 (9th Cir. 2002)). 19 Plaintiff has been granted leave to proceed with this action in forma pauperis pursuant to 20 28 U.S.C. § 1915. (ECF No. 6.) However, the in forma pauperis statute does not authorize the 21 expenditure of public funds for investigators. See 28 U.S.C. § 1915; see also Hadsell v. Internal 22 Revenue Service, 107 F.3d 750, 752 (9th Cir. 1997); Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 23 1993); Brown v. Johnson & Johnson, Inc., Case No. 1:17-cv-01285-AWI-EPG, 2018 WL 24 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (holding that “the Court is without authority to appoint 25 an investigator or researcher to assist Plaintiff.”); also see Gaines v. Harbert, No. 07cv1320- 26 J(CAB), 2009 WL 1481327, at *1 (S.D. Cal. May 27, 2009) (denying pro se prisoner’s motion 27 for appointment of investigator as Section 1915 does not require federal courts to pay expert fees 28 or other costs); Khademi v. South Placer Co. Jail, No. 2:21-cv-1498 KJM DB P, at *1 (E.D. Cal. 1 Oct. 18, 2021) (“the court is aware of no authority permitting it to provide plaintiff [a state 2 prisoner proceeding pro se] an investigator”). 3 Plaintiff's instant motion concerns funding, because only litigants who need funding need 4 permission to hire a private investigator. Santos v. Baca, No. 211CV01251KJDNJK, 2014 WL 5 12910916, at *2 (D. Nev. Aug. 19, 2014). The expenditure of public funds on behalf of an 6 indigent litigant is proper only when authorized by Congress. Id. (citing Tedder v. Odel, 890 7 F.2d 210, 211-12 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct. 8 2086, 2089, 48 L.Ed.2d 666 (1976)). The two potential sources of Congressional authorization 9 are 28 U.S.C. § 1915 and 18 U.S.C. § 3006A. Id. First, “[t]he in forma pauperis statute, 28 10 U.S.C. § 1915, does not authorize the expenditure of funds for a private investigator.” Id. (citing 11 Covarrubias v. Gower, 2014 WL 342548, *1 (N.D. Cal. Jan. 28, 2014) (citing Tedder, 890 F.2d 12 at 211-12 (pauper statute does not waive the payment of fees or expenses for an indigent’s 13 witnesses)). Second, the Criminal Justice Act, 18 U.S.C. § 3006A, does not apply because this 14 is a civil, and not a criminal, case. Id. Thus, no Congressional authorization exists for the 15 appointment of a private investigator. 16 Accordingly, Plaintiff’s request to appoint an investigator to assist him should be denied. 17 IV. RECOMMENDATIONS AND CONCLUSION 18 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 19 1. Plaintiff’s motion for appointment of counsel and an investigator be denied; and 20 2. Defendants R. Perez and Maldonado be dismissed from this action based on 21 Plaintiff’s failure to provide information sufficient for the Marshal to effect 22 service of process. Fed. R. Civ. P. 4(m). 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or 25 before May 1, 2023, any party to this case may file written objections with the Court. The 26 document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Any reply to the objections shall be served and filed within ten days after 28 the date the objections are filed. The parties are advised that failure to file objections within the 1 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: April 6, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28