Scally v. Flores

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY EUGENE SCALLY, Case No.: 22cv0182-DMS (MDD) CDCR #G-67776, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 APPOINT COUNSEL CORRECTIONAL OFFICERS 15 A. FLORES and E. VEGA, (2) DISMISSING ALL CLAIMS 16 AGAINST ALL DEFENDANTS 17 Defendants. EXCEPT FLORES AND VEGA

18 (3) DIRECTING U.S. MARSHAL TO 19 EFFECT SERVICE OF FIRST AMENDED COMPLAINT AND 20 SUMMONS ON FLORES AND VEGA 21 PURSUANT TO 28 U.S.C. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 22 23 24 Plaintiff Tony Eugene Scally is a state prisoner proceeding pro se and in forma 25 pauperis with a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983. (ECF 26 No. 7.) On May 12, 2022, the Court screened the FAC pursuant to 28 U.S.C. §§ 1915(e)(2) 27 & 1915A(b), which require the Court to sua sponte dismiss a prisoner’s in forma pauperis 28 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 1 damages from defendants who are immune. (ECF No. 8.) The Court found the FAC 2 survived the screening standards of those statutes with respect the First Amendment 3 retaliation claim against Defendants Flores and Vega but not with respect to all remaining 4 claims against all remaining Defendants. (Id. at 15.) Plaintiff was given the option of 5 filing a Second Amended Complaint or notifying the Court of his intention of proceeding 6 only against Defendants Flores and Vega with his retaliation claim. (Id. at 14.) He was 7 instructed that if he chose to proceed against Defendants Flores and Vega only the Court 8 would order the United States Marshal to serve the summons and FAC on those Defendants 9 and dismiss the remaining claims and Defendants from the FAC. (Id.) 10 Plaintiff has now filed a Notice of Intent to Proceed with First Amendment 11 Retaliation Claim in which he indicates his intention of proceeding only with his retaliation 12 claim against Defendants Flores and Vega. (ECF No. 10.) He has also filed a Motion to 13 Appoint Counsel. (ECF No. 9.) 14 I. Motion to Appoint Counsel 15 Plaintiff requests appointment of counsel on the basis that he has a meritorious claim, 16 he has been unable to obtain counsel and cannot afford counsel, and he has had difficulty 17 receiving his legal mail. (ECF No. 9 at 1-5.) There is no constitutional right to counsel in 18 a civil case and the decision to appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the 19 sound discretion of the trial court and is granted only in exception circumstances.” 20 Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. 21 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (noting that only “exceptional circumstances” 22 support such a discretionary appointment). Exceptional circumstances exist where there is 23 cumulative showing of both a likelihood of success on the merits and an inability of the 24 pro se litigant to articulate his claims in light of their legal complexity. Palmer v. Valdez, 25 560 F.3d 965, 970 (9th Cir. 2009). 26 Plaintiff’s FAC demonstrates that while not formally trained in law he is capable of 27 legibly articulating the facts and circumstances relevant to his claims. Because Defendants 28 have yet to respond to the FAC, a determination regarding the likelihood of success on the 1 merits or Plaintiff’s ability to prosecute this matter is premature, and therefore exceptional 2 circumstances warranting appointment of counsel do not exist at this time. See Agyeman, 3 390 F.3d at 1103. Thus, the Court DENIES Plaintiff’s request for appointment of counsel 4 without prejudice to Plaintiff to renew the request if he wishes to do so at a later stage of 5 these proceedings. 6 II. Conclusion and Order 7 Accordingly, good cause appearing, the Court: 8 1. DENIES Plaintiff’s Motion to Appoint Counsel without prejudice. 9 2. DISMISSES all claims against all Defendants in Plaintiff’s First Amended 10 Complaint with the exception of Plaintiff’s First Amendment retaliation claim against 11 Defendants Flores and Vega as set forth in the Court’s May 12, 2022, Order. 12 3. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended 13 Complaint (ECF No. 7) for Defendants Flores and Vega and forward it to Plaintiff along 14 with a blank U.S. Marshal Form 285 for each of these Defendants. The Clerk will provide 15 Plaintiff with certified copies of his First Amended Complaint and the summons so that he 16 may serve Defendants. Upon receipt of this “In Forma Pauperis Package,” Plaintiff must 17 complete the USM Form 285 as completely and accurately as possible, include an address 18 where Defendants may be found and/or subject to service pursuant to S.D. Cal. CivLR 19 4.1(c), and return the forms to the United States Marshal according to the instructions the 20 Clerk provides in the letter accompanying the In Forma Pauperis Package. 21 4. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 22 and summons upon Defendants Flores and Vega as directed by Plaintiff on the USM Form 23 285 provided to him. All costs of that service will be advanced by the United States. See 24 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 25 5. ORDERS Defendants, once served, to reply to Plaintiff’s First Amended 26 Complaint and any subsequent pleading Plaintiff files in this matter in which Defendants 27 are named as a party within the time provided by the applicable provisions of Federal Rules 28 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may 1 || occasionally be permitted to “waive the right to reply to any action brought by a prisoner 2 ||confined in any jail, prison, or other correctional facility under section 1983,” once the 3 Court has conducted its sua sponte screening Defendants are required to respond). 4 6. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 5 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 6 ||counsel, a copy of every further pleading, motion, or other document submitted for the 7 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 8 || original document he seeks to file with the Clerk, a certificate stating the manner in which 9 true and correct copy of that document has been served on Defendants or their counsel, 10 || and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court 11 || which has not been properly filed with the Clerk or which fails to include a Certificate of 12 || Service upon a Defendant, or their counsel, may be disregarded. 13 IT ISSO ORDERED. 14 ||Dated: June 3, 2022 15 ns my. L4\ Hon. Dana M. Sabraw 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 □□