United States District Court, D. New Mexico
ORDER DENYING PENDING MOTIONS
C. BRACK UNITED STATES DISTRICT JUDGE
MATTER is before the Court on several pending
motions filed by Plaintiff, Richard Sigala. The Court will
deny Plaintiff Sigala's motions.
Motions for Appointment of Counsel.
Plaintiff Sigala is proceeding pro se and in forma
pauperis on civil rights claims brought under 42 U.S.C.
§ 1983. First, Sigala has filed a Motion for Appointment
of Counsel (Doc. 6), a Pro Se Motion for Appointment of
Counsel (Doc. 14) and a Motion for Appointment of Counsel
(Doc. 32). There is no right to appointment of counsel in a
civil rights case. Instead, the decision whether to request
assistance of counsel rests in the sound discretion of the
Court. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1169 (10th Cir. 2003); MacCuish v. United States,
844 F.2d 733, 735 (10th Cir. 1988).
determining whether to appoint counsel, the district court
should consider the merits of the litigant's claims, the
nature and complexity of the factual and legal issues, and
the litigant's ability to investigate the facts and to
present his claims. Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The Court
has reviewed the complaint and subsequent filings in light of
the foregoing factors. Plaintiff appears to understand the
issues in the case and to be representing himself in an
intelligent and capable manner. See Lucero v.
Gunter, 52 F.3d 874, 878 (10th Cir. 1995). Accordingly,
the Court will deny the Motions for appointment of counsel.
In Forma Pauperis Motions.
Plaintiff has also filed a Motion to Excuse Filing Fee
Payments (Doc. 8) and a Motion to Proceed In Forma
Pauperis (Doc. 35). In his Motion to Excuse Filing Fee
Payments, Sigala seeks to be entirely relieved of the
obligation to pay the $350 filing fee for this action,
claiming that he cannot pay the fee even in installment
payments. Plaintiff Sigala has already been granted leave to
proceed in forma pauperis under 28 U.S.C. §
1915(b). (Doc. 4.) Section 1915(b) expressly states
“[n]otwithstanding subsection (a), if a prisoner brings
a civil action or files an appeal in forma pauperis,
the prisoner shall be required to pay the full
amount of a filing fee.” 28 U.S.C. §
1915(b)(1) (emphasis added). The Court does not have
discretion to waive the $350 filing fee under §1915(b).
contends that he has insufficient funds to pay the filing fee
in installment payments. (Doc. 8.) However, § 1915(b)
“After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid in
28 U.S.C. § 1915(b)(2). Plaintiff Sigala has paid the
initial partial filing fee. He is obligated to make
additional installment payments only when he has funds
available in his prisoner's account exceeding $10.
Because he has already been granted in forma
pauperis status, he is only required to make the
installment payments when he has available funds. The Court
will, therefore, deny his Motion to Excuse Filing Fee
Payments (Doc. 8.) The Court will also deny his second Motion
for Leave to Proceed In Forma Pauperis (Doc. 35) on
the grounds that he has already been granted leave and his
second request is moot.
Motions for Meetings and Hearings.
Plaintiff Sigala has filed a Motion for Meeting Under Rule
26(f) (Doc. 10), and a Pro Se Motion as to Case Status and
Motion for Telephonic Status Hearing (Doc. 16). The Court has
not completed preliminary screening of Plaintiffs Complaint
under 28 U.S.C. § 1915A. Plaintiffs request for meetings
and hearings are premature at this point and will be denied.
Motion for Default Judgment.
In his Motion for Default Judgment (Doc. 34), Sigala seeks
entry of a default judgment for damages against the
Defendants. Under Fed.R.Civ.P. 55, a default judgment may be
entered only when a defendant “has failed to plead or
otherwise defend.” Fed.R.Civ.P. 55(a). As noted, above,
Sigala has been granted leave to proceed in forma
pauperis and, if the Complaint survives preliminary
screening under § 1915A, the Court will be obligated to
issue and serve all process on the Defendants. 28 U.S.C.
§ 1915(d). At this time the Defendants have not been
served with process and, as a consequence, have not
“failed to plead or otherwise defend.”