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Borja v. Eaton

United States District Court, W.D. Washington, Tacoma

August 26, 2014

SONNY BORJA, Plaintiff,
v.
CAPTAIN EATON, LT PETERS, SGT BECKER, Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL AND DIRECTING PLAINTIFF TO PERFECT SERVICE

KAREN L. STROMBOM, Magistrate Judge.

This matter has been referred to United States Magistrate Judge Karen L. Strombom, pursuant to 28 U.S.C. § 636(b)(1), Local Rules MJR 3 and 4, and Fed.R.Civ.P. 72. The case is before the undersigned because Plaintiff, Sonny Borja, filed and noted a motion requesting a jury trial and asking for appointment of counsel. Dkt. 6. The Clerk's Office is directed to note that plaintiff has requested a jury trial.

Mr. Borja paid the full filing fee and is not proceeding in forma pauperis. Mr. Borja alleges that he was assaulted by a corrections officer in the county jail and then placed in segregation. Dkt. 5. However Plaintiff admits that there are pending charges for custodial assault as a result of this incident. Id. Mr. Borja challenges his classification and states that he has remained on some form of lock down status or administrative segregation since this incident. Id. Mr. Borja states that it has been over 17 months since he was placed on the higher custody level. Id. Mr. Borja asks for appointment of counsel and says he does not have access to "process services." Dkt. 6.

1. Appointment of Counsel.

No constitutional right exists to appointed counsel in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). See also United States v. $292, 888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) ("[a]ppointment of counsel under this section is discretionary, not mandatory.") However, in "exceptional circumstances, " a district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (emphasis supplied.)

Plaintiff paid the full filing fee and is not proceeding as a indigent inmate. Even if Plaintiff were indigent a court could only appoint counsel in exceptional circumstances. The undersinged must evaluate both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient grasp of his case or the legal issue involved and an inadequate ability to articulate the factual basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

Plaintiff has the ability to articulate his claim and he has done so in his complaint. Plaintiff alleges that he is being held at a higher classification level then he deserves. Dkt. 5. Plaintiff has no right to be held in any particular prison or at any particular custody level. Hewitt v. Helms, 459 U.S. 460, 467-68 (1983), overruled on other grounds, Sandin v. Conner, 515 U.S. 472, 473 (1995); Olim v. Wakinekona, 461 U.S. 238 (1983). This is true even if the transfer results in a "grievous loss." Meachum v. Fano, 427 U.S. 215, 224 (1976). Further, an inmate does not have a right to be free from administrative segregation. Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Thus, plaintiff fails to show a likelihood of success on the merits. Accordingly the undersigned DENIES plaintiff's motion for appointment of counsel.

2. Service of process.

Mr. Borja states that he does not have access to a "process service." Dkt. 6, p. 2. Fed. R.

Civ. P. 4 addresses service of process. Because Mr. Borja has also indicated he does not have access to federal legal material (Dkt. 6, p. 2) the undersigned sets forth relevant portions of Fed.R.Civ.P. 4:

Federal Rule of Civil Procedure 4
(a) Contents; Amendments.
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney or-if ...

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