Gordon v. Elloyhim

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Sherbly Wayne Gordon, Case No.: 3:21-cv-01346-JO-JLB 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. IFP AS MOOT, DENYING MOTION FOR APPOINTMENT OF COUNSEL 14 Dr. Elloyhim, WITHOUT PREJUDICE, AND 15 Defendant. EXTENDING TIME FOR SERVICE FOR GOOD CAUSE 16 17 18 19 20 21 On July 26, 2021, Plaintiff Sherbly Wayne Gordon, incarcerated at the Richard J. 22 Donovan Correctional Facility in San Diego, California, filed a pro se civil rights 23 complaint pursuant to 42 U.S.C. § 1983. Dkt. 1 (“Complaint”). Plaintiff alleges that 24 Defendant Dr. Elloyhim refused his request for mental health services when he complained 25 of suicidal thoughts. See id. at 3-4. 26 On August 11, 2021, the Court granted Plaintiff’s motion to proceed in forma pauperis (“IFP”) and directed the U.S. Marshal to effect service on Defendant in 27 accordance with Plaintiff’s completed U.S. Marshall Form 285 (“Form 285”). Dkt. 5 (“IFP 28 1 Order”). A summons was issued, and the Court provided Plaintiff with a blank Form 285, 2 a certified copy of the IFP Order, a certified copy of the Complaint, and the summons 3 (collectively, the “IFP Package”). The Court ordered Plaintiff to return the IFP Package 4 and the completed Form 285 to the U.S. Marshal. Id. Plaintiff did not return the IFP 5 Package to the U.S. Marshal, and Plaintiff failed to serve Defendant within 90 days of filing 6 the Complaint pursuant to Fed. R. Civ. P. 4(m). 7 This action was transferred to the undersigned on January 7, 2022. Dkt. 7. On 8 January 28, 2022, the Court ordered Plaintiff to show cause why the Complaint should not 9 be dismissed for failure to prosecute. Dkt. 8 (“OSC”). The Court stated that failure to 10 respond by April 28, 2022 to the OSC will result in dismissal of the action. 11 On February 9, 2022, Plaintiff filed another motion to proceed IFP. Dkt. 9. On 12 March 4, 2022, Plaintiff filed a motion to appoint counsel. Dkt. 11. 13 I. DISCUSSION 14 A. Motion to Proceed IFP 15 In light of the August 11, 2021 IFP Order granting Plaintiff’s motion to proceed 16 IFP, Plaintiff’s new motion to proceed IFP (Dkt. 9) is DENIED as moot. 17 B. Request for Appointment of Counsel 18 There is no right to counsel in civil cases, and district courts may appoint counsel 19 only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 20 Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both 21 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims 22 pro se in light of the complexity of the legal issues involved.’ Neither of these issues is 23 dispositive and both must be viewed together before reaching a decision.” Id. 24 On this early record, the Court does not find that there is a likelihood of success on 25 the merits. Therefore, the Court DENIES without prejudice Plaintiff’s motion for 26 appointment of counsel (Dkt. 11). 27 28 1 However, the Court finds good cause under Fed. R. Civ. P. 4(m) to extend the time 2 for Plaintiff to complete service in light of the Court’s OSC. See Fed. R. Civ. P. 4(m). 3 Accordingly, the Court extends the deadline for Plaintiff to return the IFP Package to the 4 U.S. Marshall to on or before April 14, 2022. 5 II. CONCLUSION 6 For the reasons discussed above, the Court hereby: 7 1. DENIES as moot Plaintiff’s motion to proceed IFP (Dkt. 9). 8 2. DENIES without prejudice Plaintiff’s motion for appointment of counsel (Dkt. 9 11). 10 3. DIRECTS the Clerk to provide Plaintiff with another IFP Package containing a 11 blank Form 285, a certified copy of the IFP Order, a certified copy of his 12 Complaint, and the summons. 13 14 4. DIRECTS Plaintiff, upon receipt of the IFP Package, to complete the Form 285 15 as completely and accurately as possible (including an address where Defendant 16 may be served) and return the IFP Package to the U.S. Marshal on or before 17 April 14, 2022, according to the instructions the Clerk provides in the letter 18 accompanying the IFP package. If Plaintiff fails to return the completed IFP 19 Package to the U.S. Marshall by April 14, 2022, or otherwise fails to show 20 cause by April 28, 2022, the Court will dismiss Plaintiff’s Complaint for failure 21 to prosecute. 22 5. DIRECTS the U.S. Marshal to serve a copy of the Complaint and summons 23 upon Defendant as directed by Plaintiff on the completed Form 285. All costs 24 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); 25 Fed. R. Civ. P. 4(c)(3). 26 // 27 // 28 // l IT IS SO ORDERED. 2 3 ||Dated: March 9, 2022 4 Ho orgbfe Tinsook Ohta 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28