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Martinez v. Garcia

United States District Court, D. New Mexico

July 25, 2019

LEROY MARTINEZ, Plaintiff,
v.
JOHN GARCIA, et al., Defendants.

          ORDER ON PENDING MOTIONS

          THE HONORABLE CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Leroy Martinez' Motion for Appointment of Counsel, (Doc. 3), filed December 12, 2018; Second Motion for Appointment of Counsel, (Doc. 6), filed January 8, 2019; Application to Proceed in District Court Without Prepaying Fees or Costs, (Doc. 7), filed April 23, 2019; and Request for Telephonic Hearing, (Doc. 13), filed June 12, 2019. Having reviewed the Motions, the Court will GRANT Mr. Martinez' Application to Proceed in District Court Without Prepaying Fees or Costs, (Doc. 7), and will DENY the Motions for Appointment of Counsel, (Doc. 3), (Doc. 6), and Request for Telephonic Hearing, (Doc. 13).

         I. Motions for Appointment of 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. Mr. Martinez 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 Mr. Martinez' Motions for Appointment of Counsel, (Doc. 3), (Doc. 6).

         II. Application to Proceed in District Court Without Prepaying Fees or Costs

         Next, Mr. Martinez seeks leave to proceed under 28 U.S.C. § 1915 without prepaying fees or costs. (Doc. 7). Because the Court grants the application, the filing fee for this civil rights Complaint is $350.00. Based on the information about Mr.

         Martinez' financial status, (Doc. 7), the Court will waive an initial partial payment pursuant to § 1915(b)(1). Mr. Martinez is still required to pay the full amount of the filing fee pursuant to § 1915(b)(1). Mr. Martinez must file monthly financial certificates and make monthly payments of twenty percent (20%) of the preceding month's income credited to his account until the fee is paid or show cause why the payment should be excused. Failure to comply with this Order may result in dismissal of the Complaint without further notice.

         III. Request for Telephonic Hearing

         Finally, because Mr. Martinez is a prisoner proceeding pro se, the Court is obligated to conduct a preliminary screening of the Complaint. See 28 U.S.C. § 1915A. Indeed, whenever a prisoner brings a civil action against government officials, the Court is obligated to screen the prisoner's complaint or petition. 28 U.S.C. § 1915A. Specifically, 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 seeks 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 the complaint-
(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 such relief.

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 ...


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