Berroteran v. Quirk and Tratos ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 ABELARDO BERROTERAN, Case No. 2:21-cv-00396-RFB-EJY 5 Plaintiff, ORDER 6 v. 7 QUIRK AND TRATOS, WESTERN GLOBAL COMMUNICATIONS, PAUL 8 ANDERSON, 9 Defendants. 10 11 Pending before the Court is Plaintiff’s Motion for Appointment of Counsel. ECF No. 10. 12 No response to Plaintiff’s Motion will be filed as no Defendant has been served with Plaintiff’s 13 Complaint. 14 On March 11, 2021, the Court entered an Order requiring the Clerk of Court to send to 15 Plaintiff the approved application to proceed in forma pauperis by a non-prisoner and the 16 instructions for the same. ECF No. 3. That Order also stated that Plaintiff had 30 days from the date 17 of the Order to file a complete in form pauperis application on the correct Court form or pay the 18 filing fee of $402. Id. The Order was returned to the Court as undeliverable on April 7, 2021. ECF 19 No. 4. On April 15, 2021, Plaintiff filed a change of address and subsequently paid the $402 filing 20 fee. ECF Nos. 5 and 7. A summons was issued for one defendant on April 20, 2021 (ECF No. 8), 21 but service of the summons was not filed with the Court, and no defendant has appeared in this case. 22 Plaintiff does not have a constitutional right to appointment of counsel. Lassiter v. Dep't of 23 Soc. Servs. of Durham Cty., 452 U.S. 18, 25 (1981). A federal court can appoint counsel for civil 24 litigants only when exceptional circumstances are present. 28 U.S.C. § 1915(e)(1); Agyeman v. 25 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). When determining whether exceptional 26 circumstances exist, the Court considers “the likelihood of success on the merits as well as the ability 27 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” 1 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Here, Plaintiff has not demonstrated 2 there is a claim that may proceed before the Court as Plaintiff has not demonstrated he served 3 Defendants and thus, at best, consideration of Plaintiff’s request for counsel is premature. 4 Rule 4 of the Federal Rules of Civil Procedure establishes the process for serving complaints 5 filed in federal court. Subsection 4(c) states, in pertinent part, that “[a] summons must be served 6 with a copy of the complaint. The plaintiff is responsible for having the summons and complaint 7 served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person 8 who makes service.” Rule 4(m) states, in pertinent part, that “[i]f a defendant is not served within 9 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff— 10 must dismiss the action without prejudice against that defendant or order that service be made within 11 a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time 12 for service for an appropriate period.” (Emphasis added.) Plaintiff has not demonstrated any named 13 defendant has been served with his Complaint. The Court notes, however, that the Complaint was 14 held in abeyance until Plaintiff either filed a complete in forma pauperis application or paid the filing 15 fee. Despite the payment of the filing fee, the Complaint was never filed. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Appointment of 17 Counsel, ECF No. 10 is DENIED as premature. Plaintiff may renew his Motion, if he chooses to do 18 so, after Plaintiff files a return of service of his Complaint on at least one defendant. 19 IT IS FURTHER ORDERED that the Clerk of Court shall file Plaintiff’s Complaint (ECF 20 No. 1-1) immediately. 21 IT IS FURTHER ORDERED that Plaintiff has 90 days from the date of this Order to obtain 22 summonses and serve each Defendant with the Summons and Complaint in accordance with Fed. R. 23 Civ. P. 4. 24 Dated this 14th day of September, 2021 25 26 27