Alonso v. San Diego County Sheriff Department
- Proceeding
- district
- Area
- civil
- Panel
- Robert Steven Huie (author)
Analysis
The court considered a pro se plaintiff's motion to appoint counsel and the status of service of process in a civil rights action. The court denied the motion to appoint counsel without prejudice and ordered the plaintiff to effectuate service within 45 days or face dismissal.
| What the court decided | The model |
|---|---|
Motion to Appoint Counsel Denied“Plaintiff's Motion [ECF No. 9] is DENIED without prejudice.” | agree with court The court correctly applied the Ninth Circuit standard that there is no constitutional right to counsel in civil cases and that appointment under 28 U.S.C. § 1915(e)(1) requires 'exceptional circumstances.' The court found the plaintiff failed to meet this burden, noting a lack of good faith efforts to obtain counsel and reasons for not hiring an attorney that were unrelated to inability to pay (e.g., cost of criminal defense, lack of guaranteed win). This is a defensible exercise of discretion based on the record recited. |
Order Directing Service of Process“the Court ORDERS that Plaintiff shall have an additional forty-five (45) days after the date of this Order to properly effectuate service of the Summons and Complaint.” | agree with court Under Federal Rule of Civil Procedure 4(m), if a defendant is not served within 90 days of filing, the court must dismiss the action without prejudice or order service within a specified time. The complaint was filed January 24, 2022, and the order was issued October 28, 2022, well past the 90-day deadline. The court chose to order service within a specified time rather than dismiss, which is a permissible option under the Rule. The court noted the plaintiff did not show good cause for the delay but still granted an extension, which is within the court's discretion to manage the docket. |
The order itself: sound — The order correctly identifies the legal standards for appointing counsel in civil cases and applies them to the specific facts presented (lack of good faith efforts, reasons for not hiring counsel unrelated to indigency). It also correctly applies Rule 4(m) to the failure to serve within 90 days, choosing the option to order service within a specified time. The reasoning is concise but legally sound.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || Christopher K. Alonso, Case No.: 3:22-cv-97-RSH-LR 12 ORDER: 13 Plaintiff, 14 1. DENYING MOTION TO APPOINT V. COUNSEL, AND 13 san Diego County Sheriff Department, 16 2. DIRECTING SERVICE OF PROCESS Defendant. [ECF No. 9] 19 Plaintiff's Complaint, filed on January 24, 2022, alleges that Defendant San Diego * County Sheriff's Department violated his civil rights in connection with an incident on February 20, 2021, in which Plaintiff was pulled over for a purported traffic violation and then arrested for possession of a loaded weapon. ECF No. 1. Along with the Complaint, 23 Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) and a motion to 28 appoint counsel. ECF Nos. 2, 3. On May 6, 2022, the Court denied without prejudice 2 Plaintiff's IFP Motion, based on unexplained discrepancies within his IFP application that 26 rendered the application incomplete and not credible. ECF No. 5. The Court subsequently denied Plaintiffs Motion to Appoint Counsel as moot. Jd.
1 On June 17, 2022, Plaintiff paid the $402 filing fee. ECF No. 6. On August 26, 2022, 2 ||he filed a new motion to appoint counsel. ECF No. 9. The Motion described his past 3 || attempts to obtain counsel, including: (1) an attempt in 2020 (before the incident alleged 4 ||in the Complaint) to obtain help from the “California Bar Association” by telephone, for 5 |) which there was “no follow up”; and (2) an attempt to engage an attorney named “Ruiz” 6 ||in February 2021, whom Plaintiff did not engage because of a “charge for criminal aspect” 7 |) and because the attorney “couldn’t guarantee [a] civil win.” /d. Plaintiff states that he needs 8 |) appointed counsel because he is not employed, and because he “did not find anyone 9 || knowledgeable with my case statu[t]es violations allegations.” Id. 10 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Soc. 11 || Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The 12 || IFP statute provides that a court “may request an attorney to represent any person unable 13 || to afford counsel.” 28 U.S.C. § 1915(e)(1). However, this discretion is exercised only under 14 ||‘‘exceptional circumstances.” Palmer, 560 F.3d at 970. The burden of demonstrating 15 || exceptional circumstances is on the party seeking counsel. Jd. A court must consider “the 16 || likelihood of success on the merits as well as the ability of the petitioner to articulate his 17 ||claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 18 || 718 F.2d 952, 954 (9th Cir. 1983). 19 The Court finds that Plaintiff has not met the requisite burden. Additionally, 20 || Plaintiff's Motion does not reflect past good faith efforts to obtain counsel, and the stated 21 |/reasons for not obtaining counsel relate to factors other than Plaintiff's ability to pay. The 22 || Court declines to exercise its discretion to appoint counsel at this time. Plaintiff's Motion 23 || [ECF No. 9] is DENIED without prejudice. 24 Additionally, Plaintiff has not filed proof of timely service upon Defendant. Federal 25 of Civil Procedure 4(m) provides: “If a defendant is not served within 90 days after 26 || the complaint is filed, the court ... must dismiss the action without prejudice against that 27 || defendant or order that service be made within a specified time. But if the plaintiff shows 28 || good cause for the failure, the court must extend the time for service for an appropriate 1 || period.” 2 Plaintiff has not sought an extension of time to effect service. Nonetheless, the Court 3 || ORDERS that Plaintiff shall have an additional forty-five (45) days after the date of this 4 || Order to properly effectuate service of the Summons and Complaint. If Plaintiff fails to 5 effect service and file proof of service within that time, the Court will dismiss this action 6 || for failure to prosecute. 7 SO ORDERED. ‘ 8 || Dated: October 28, 2022 ehw 7 ‘ Howe 9 Hon. Robert S. Huie United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28