United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
March 29, 2019, the court granted pro se plaintiff David
Espana leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 3.) According to 28 U.S.C.
§ 1915, the court is directed to dismiss the case at any
time if it determines that the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant. After screening
the complaint, the court dismissed the complaint with leave
to amend, because plaintiff “failed to plead sufficient
factual content that would allow the court to draw the
reasonable inference that defendant violated plaintiff's
Fourth Amendment rights.” (ECF No. 3 at 3.)
plaintiff filed the first amended complaint, which was
similarly dismissed for failing to plead sufficient factual
content. (See ECF No. 6 at 3-4.) Subsequently,
plaintiff filed a motion for appointment of counsel and the
second amended complaint. (ECF Nos. 7, 8.)
second amended complaint, plaintiff details how the Fairfield
Police Department allegedly used Road Runner Tow to impound
plaintiff's vehicle for 30 days, because plaintiff's
roommate was caught driving the vehicle without a license.
(ECF No. 8 at 3.) Plaintiff alleges that Road Runner Tow, and
its owner Jim Englebright, violated plaintiff's Fourth
Amendment rights by not allowing him to retrieve property
from the vehicle while it was impounded. (Id.) The
second amended complaint also alleges that the Fairfield
Police Department violated plaintiff's Fourteenth
Amendment rights to equal protection of the law by ignoring
plaintiff's complaint against Road Runner Tow relating to
an alleged assault, because certain officers have personal
relationships with employees of Road Runner Tow.
(Id. at 4.)
on the limited record before the court, and a liberal
construction of plaintiff's second amended complaint, the
court cannot conclude that plaintiff's action is
frivolous, that the second amended complaint fails to state a
claim upon which relief can be granted, or that plaintiff
seeks monetary relief from an immune defendant. The court
reserves decision as to plaintiff's claims until the
record is sufficiently developed, and this order does not
preclude defendants from challenging plaintiff's second
amended complaint through a timely motion pursuant to Federal
Rule of Civil Procedure 12 or other appropriate method of
challenging plaintiff's pleading. Accordingly, the court
orders service of the second amended complaint on defendants.
also requests the appointment of counsel for this matter.
(ECF No. 7.) Any successful application for appointment of
counsel must comply with criteria set forth in Bradshaw
v. Zoological Society of San Diego, 662 F.2d 1301 (9th
Cir. 1981). Before appointing counsel to plaintiff, the court
must consider (1) plaintiff's financial resources, (2)
the efforts already made by plaintiff to secure counsel, and
(3) plaintiff's likelihood of success on the merits.
Id. at 1318. Appointment of counsel is not a matter
of right. See Ivey v. Board of Regents, 673 F.2d
266, 269 (9th Cir. 1982).
plaintiff is proceeding in forma pauperis, the first factor,
which relates to his financial condition, is a fortiori
resolved in his favor. Similarly, as to the third factor, the
court cannot conclude that plaintiff's complaint is
frivolous at this juncture and is ordering service. However,
as to the second factor, plaintiff makes no showing regarding
his efforts to secure counsel. Rather, plaintiff simply
requests the court appoint him counsel so that he may
“prepare a proper complaint . . . [and] meet any and
all requirements and time constraints, ” as an
individual who is incarcerated. (ECF No. 7 at 2.) Therefore,
appointment of counsel is not warranted in this matter, at
foregoing reasons, IT IS HEREBY ORDERED that:
Plaintiff's motion for appointment of counsel (ECF No. 7)
Clerk of Court shall add Jim Englebright and the Fairfield
Police Department as defendants.
Service of the second amended complaint is appropriate for
defendants Road Runner Tow, Jim Englebright, and the
Fairfield Police Department.
Clerk of Court is directed to issue forthwith all process
pursuant to Federal Rule of Civil Procedure 4.
Clerk of Court shall send plaintiff one USM-285 form, one
summons, this court's scheduling order, and the forms
providing notice of the magistrate judge's ...