Amador v. Brower

Full title: VICTOR EUGENE AMADOR, Plaintiff, vs. OFFICER BROWER and OFFICER KLAHN…

Court: United States District Court, N.D. California

Date published: Aug 26, 2003

No. C 01-1372 WHA (PR); (N.D. Cal. Aug. 26, 2003)

Opinion

No. C 01-1372 WHA (PR);

August 26, 2003

JUDGMENT

WILLIAM HASKELL ALSUP, District Judge

The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.

GRANT OF DEFENDANTS' MOTION TO DISMISS

This is a civil rights case filed pro se by a state inmate, although the events which gave rise to it occurred at the Santa Clara County Jail. Plaintiff contended that defendants used excessive force against him. The Court ordered service on defendants Brower and Klahn. However, service was ordered to be made at an address other than that provided by plaintiff in his complaint. Although service was attempted, defendants did not file an answer or dispositive motion. On October 8, 2002, the court issued a renewed order of service directed to the address given by plaintiff, the Santa Clara County Jail. In response, a Deputy County Counsel provided an affidavit in which she stated that defendants were never employees of the sheriff; that they were at one time employees of the Santa Clara Department of Corrections; that they were not employees of that department at the time the complaint was filed; and that she attempted without success to contact them at the last addresses and telephone numbers the county had for them.

The Court noted that it is plaintiffs responsibility to provide service instructions, i.e., an address at which service may be performed. Although far more than the 120 days allowed by Rule 4(m) of the rules of civil procedure for obtaining service had passed, the Court held that plaintiffs incarceration constituted good cause for extending the time to obtain service, see Fed.R.Civ.P. 4(m), but stated that this could not go on indefinitely. Plaintiff was ordered to provide an address at which service could be performed within thirty days of the date the order was entered.

When plaintiff did not provide a service address, counsel "specially appearing" moved to dismiss for failure to comply with the order to provide a service address within the time allowed. Plaintiff filed an opposition and also provided a service address, namely that of counsel. Plaintiff is mistaken that such a procedure is authorized by the reference in Rule 5(b) of the Federal Rules of Civil Procedure to service on a party's attorney; that rule applies to service of copies of papers which have been filed with the court, after the parties have been served at the outset of the case as provided in Rule 4(e) and counsel has appeared.

Furthermore, given counsel's uncontradicted assertion that she attempted without success to contact defendants at the last addresses and telephones numbers the county had for them, plaintiffs suggestion that counsel be ordered to provide an address at which they can be served has no merit.

Plaintiff also asks the Court to find counsel for him, presumably in the hope that counsel might be able to find the defendants.¹ The Court concludes that the circumstances of this case, though regrettable, do not constitute "exceptional circumstances."

1 28 U.S.C. § 1915 confers on a district court only the power to "request" that counsel represent a litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). This does not give the courts the power to make "coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). The court may ask counsel to represent an indigent litigant under § 1915 only in "exceptional circumstances," the determination of which requires an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). It might be argued that the Wilborn standard no longer makes sense in light of Mallard, now that the court's power to "appoint" counsel amounts to no more than the power to ask private counsel to provide pro bono representation. Why this "power" should be limited to "exceptional circumstances" is not obvious. However, the Wilborn standard remains the law in the Ninth Circuit. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) withdrawn in part on other grounds on reh'g en bane, 154 F.3d 952 (9th Cir. 1998) (en banc).

CONCLUSION

Plaintiffs motion for appointment of counsel (doc 31) is DENIED. Defendants' motion to dismiss (doc 27) is GRANTED. This case is dismissed without prejudice. All pending motions are terminated. The clerk shall close the file.

SO ORDERED.