United States District Court, D. Arizona
S. Willett United States Magistrate Judge
Joseph Andrew DeKenipp is a pro se prisoner confined in the
Arizona Department of Corrections, Manzanita Unit, in Tucson,
Arizona. He has filed a Second Amended Complaint (Doc. 23),
alleging a violation of his civil rights pursuant to 42
U.S.C. § 1983. On August 3, 2016, the Court screened the
Second Amended Complaint pursuant to 28 U.S.C. §
1915A(a) and ordered Defendants Johnson, Martinez, and Neal
to answer Count One (Doc. 26 at 9). Counts Two, Three, and
all other named Defendants were dismissed without prejudice
(Id.). The Court sent service packets to the
Plaintiff with instructions to complete and return the
service packets to the Clerk of Court within twenty-one days
for service of process by the United States Marshals Service
(“USMS”). The Court set a time limit of sixty
(60) days from the date of the filing of its Order (Doc. 26)
for the Plaintiff to complete service of process
to the Court having screened the Plaintiff's Second
Amended Complaint, Plaintiff filed a “Request for
Service of Summons, Rules 4(b), 4(m), Fed. Rules Civil
Procedure” (Doc. 25). In his Request, Plaintiff seeks
an extension of time to serve the Defendants. The Court finds
that the Request is premature as it was sought prior to the
screening of Plaintiff's Second Amended Complaint. The
Court's Order (Doc. 26) renders Plaintiff's Request
moot. In fact, the Clerk of Court forwarded Plaintiff‘s
completed service packets to the USMS on August 26, 2016.
Time for service of process has not run, nor has USMS
attempted service yet. The Request (Doc. 25) shall be denied
pending before the Court is “Plaintiff's Pro Per
Motion For Leave of Court For Appointment of Advisory Counsel
Pursuant to 28 USC--§ 1915(e)(1); 42 USC§ 1988; 18
USC § 300A, In a Complex Case Under 42 USC § 1983,
by a State Prisoner.” (Doc. 28). By Order (Doc. 22)
filed on March 24, 2016, the Court denied Plaintiff's
previous Motion for Appointment of Counsel (Docs. 19-21).
Plaintiff now requests the appointment of either counsel or
advisory counsel due to the limitations Plaintiff faces while
incarcerated, the complexity of his case, and his inability
to afford an attorney.
previously explained to the Plaintiff, there is no
constitutional right to the appointment of counsel in a civil
case. See Johnson v. U.S. Dep't of Treasury, 939
F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of
the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).
“However, a court may under ‘exceptional
circumstances' appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1).”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(quoting Agyeman v. Coors. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004)). “When determining whether
‘exceptional circumstances' exist, a court must
consider ‘the likelihood of success on the merits as
well as the ability of the [plaintiff] to articulate his
claims pro se in light of the complexity of the
legal issues involved.'” Palmer, 560 F.3d
at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983)) (italics in original); see also Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
“Neither of these considerations is dispositive and
instead must be viewed together.” Palmer, 560
F.3d at 970 (citing Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986)).
considered both elements, Plaintiff has not shown that
exceptional circumstances are present that would require the
appointment of counsel in this case. Plaintiff has not
demonstrated a likelihood of success on the merits, nor has
he shown that he is experiencing difficulty in litigating
this case because of the complexity of the issues involved.
Plaintiff's continued filings with the Court, as well as
the instant motion, indicate that Plaintiff remains capable
of navigating his proceedings and presenting arguments to the
Court. See Wilborn, 789 F.2d at 1331 (“If all
that was required to establish successfully the complexity of
the relevant issues was a demonstration of the need for
development of further facts, practically all cases would
involve complex legal issues.”). Plaintiff remains in a
position no different than many pro se prisoner litigants.
This case has not been designated complex. Having failed to
show that any exceptional circumstances are present,
Plaintiff's request for appointment of counsel or
advisory counsel will be denied.
reasons set forth herein, IT IS ORDERED
denying without prejudice Plaintiff's “Request for
Service of Summons, Rule 4(b), 4(m), Fed. Rules Civil
Procedure” (Doc. 25).
IS FURTHER ORDERED denying “Plaintiff's
Pro Per Motion For Leave of Court For Appointment of Advisory
Counsel Pursuant to 28 USC--§ 1915(e)(1); 42 USC§
1988; 18 USC § 300A, In a Complex Case ...