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Carroll v. Adevara

September 27, 2010

VERNON D. CARROLL, PLAINTIFF,
v.
S. SURY ADEVARA AND E. MAZIN, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR ALIAS SUMMONS AND FOR A FULL BACKGROUND INVESTIGATION AND PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL AND MOTION FOR DECLARATION OF INDIGENCY

Before the Court are pro se Plaintiff Vernon D. Carroll's ("Plaintiff"): Motion for Alias Summons and Motion for A Full Background Investigation Under Court Order for Public Records and Whereabouts of Missing Defendants, a Full Print-out of Public Records and Electronic Search ("Investigation Motion"),*fn1 filed on August 6, 2010; and Request for Appointment of Counsel and Motion for Declaration of Indigency ("Motion to Appoint Counsel"), filed on August 11, 2010. The Court finds these matters suitable for disposition without a hearing pursuant to Rule 78-230(h) of the Local Rules of the United States District Court, Eastern District of California ("Local Rules"). For the reasons set forth below, Plaintiff's Investigation Motion and Motion to Appoint Counsel are HEREBY DENIED.

BACKGROUND

Plaintiff filed his Second Amended Prisoner Civil Rights Complaint ("Second Amended Complaint") on December 11, 2009. On December 22, 2009, the district judge issued a Screening Order concluding, inter alia, that the allegations in the Second Amended Complaint were sufficient to warrant service on Defendants S. Sury Adevara and E. Mazin (collectively "Defendants"). On January 19, 2010, the district judge issued an Order Directing Service by United States Marshal Without Prepayment of Costs.

On June 3, 2010, the United States Marshal filed a Process Receipt and Return certifying that the Deputy United States Marshal who attempted personal service on Defendant S. Sury Adevara was unable to locate Adevara at the address that Plaintiff provided. On June 25, 2010, the United States Marshal filed a Process Receipt and Return certifying that the Deputy United States Marshal who attempted personal service on Defendant E. Mazin was unable to locate Mazin.

On July 27, 2010, this Court issued an Order to Show Cause, ordering Plaintiff to either: 1) provide Defendants' current addresses for service; or 2) file a declaration showing good cause, if any, why this case should not be dismissed for failure to effect timely service pursuant to Federal Rule of Civil Procedure 4(m). The Court ordered Plaintiff to do so by no later than August 27, 2010. Prior to that date, Plaintiff filed the instant motions.

DISCUSSION

I. Appointment of Counsel

Plaintiff seeks the appointment of counsel "so that [his] interests may be protected". [Motion to Appoint Counsel at 2.] He emphasizes that he is incarcerated, has no assets and no income, and is learning to work on a computer. [Id. at 1.]

Generally, a person has no right to counsel in civil actions. However, a court may under "exceptional circumstances" appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128, 125 S.Ct. 2941, 162 L.Ed.2d 867 (2005). When determining whether "exceptional circumstances" exist, a court must consider the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Neither of these considerations is dispositive and instead must be viewed together.

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (some citations and quotation marks omitted).

The circumstances that Plaintiff has articulated are common to most prisoners and do not constitute exceptional circumstances for purposes of § 1915(e)(1). Further, the instant case is not unusually complex, and Plaintiff appears to be reasonably able to articulate his claims on his own behalf.

Finally, based on this Court's knowledge of the case, the Court cannot find a likelihood of success which would warrant the appointment of counsel. Plaintiff's request for ...


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