United States District Court, D. New Mexico
CARLOS J. MARES, Plaintiff,
MATTHEW E. CHANDLER, et al., Defendants.
ORDER ON PENDING MOTIONS
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on four pending motions filed by
Plaintiff, Carlos J. Martinez: (1) Motion Asking
<Judge/Court> to Appoint Counsel [ECF No. 5]; (2)
Motion to Submit Court Documented Evidence [ECF No. 7]; (3)
Motion to Service of Process [ECF No. 8]; and (4) Motion to
Submit Proof of Exhausted Administrative Remedies [ECF No.
Asking <Judge/Court> to Appoint Counsel: In
his Motion, Plaintiff Mares asks the Court to appoint counsel
to represent him under 28 U.S.C. § 1915(e)(1). Section
1915(e)(1) provides that “[t]he court may request an
attorney to represent any person unable to afford
counsel.” 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. Corrections Corp. of
America, 331 F.3d 1164, 1169 (10th Cir. 2003);
MacCuish v. United States, 844 F.2d 733, 735 (10th
Cir. 1988). In 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 Mares
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 Motion Asking
<Judge/Court> to Appoint Counsel [ECF No. 5].
to Submit Court Documented Evidence and Motion to Service of
Process: Plaintiff's Motion to Submit Court
Documented Evidence seeks to have transcripts of state court
proceedings, police reports, and other documentary evidence
submitted to the Court in support of Plaintiff's civil
rights claims. [ECF No. 7]. The Motion to Service of Process
asks the Court to effectuate service of process on the
Defendants under Federal Rule of Civil Procedure 4. [ECF No.
8]. Because Plaintiff is a prisoner proceeding pro se and
in forma pauperis, the Court is obligated to conduct
a preliminary screening of the Complaint. See 28
U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). Whenever a
prisoner brings a civil action against prison officials, the
Court is obligated to screen the prisoner's complaint. 28
U.S.C. § 1915A. Section 1915A states:
“The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seems redress
from a governmental entity or officer or employee of a
governmental entity.” . . .
On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(a) and (b). The Court has a similar
obligation to screen the complaint when a pro se plaintiff is
proceeding without prepayment of fees and costs under 28
U.S.C. § 1915(e)(2):
“Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be ...