United States District Court, D. New Mexico
BENJAMIN W. FAWLEY, Plaintiff,
LEA COUNTY BORAD OF COMMISSIONERS, et al., Defendants.
ORDER ON PENDING MOTIONS
MATTER is before the Court on the Motion to Add
5th Judicial District Court Clerk, III, Jenifer
Salcido as a Named Defendant (Doc. 12), Plaintiff's
Motion for Appointment of Counsel (Doc. 13), and
Plaintiff's Motion to Assert “Fact of Harm”
(Doc. 15) filed by Plaintiff Benjamin W. Fawley. The Court
will grant the Motion to Add 5th Judicial District
Court Clerk, will deny the Motion for Appointment of Counsel,
and will deny Plaintiff's Motion to Assert “Fact of
Harm” as premature and without prejudice.
Motion to Add 5th Judicial District
Court Clerk, III, Jenifer Salcido, as a Named Defendant (Doc.
Civil Rights Complaint, Plaintiff Fawley named “Jane
Doe” as a Defendant. (Doc. 1 at 1). Fawley's Motion
to Add 5th Judicial District Court Clerk seeks to
amend the Complaint to substitute 5th Judicial
District Court Clerk, III, Jenifer Salcido, as a named
defendant in place of Jane Doe. Under Fed. R. Civ. 15(a)(1),
Plaintiff Fawley may amend his Complaint once as a matter of
right. Therefore, the Court will grant Fawley's Motion
and will substitute the 5th Judicial District
Court Clerk, III, Jenifer Salcido as a named defendant in
place of Jane Doe (Doc. 12).
Plaintiff's Motion for Appointment of Counsel (Doc.
Motion for Appointment of Counsel, Plaintiff Fawley asks the
Court to appoint counsel to represent him in this civil
rights proceeding. (Doc. 13). 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 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 for
Appointment of Counsel. (Doc. 13).
Plaintiff's Motion to Assert “Fact of
Harm” (Doc. 15):
Motion to Assert “Fact of Harm” requests leave to
submit attachments to the Court to establish Plaintiff's
claim that he has been harmed by actions of the Defendants.
(Doc. 15 at 1-5). Because Plaintiff is a prisoner proceeding
pro se, the Court is obligated to conduct a preliminary
screening of the Complaint. See 28 U.S.C. §
1915A. 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.
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
. . .
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). Requests for service of
process, discovery, and submissions of proof are premature
and unavailable prior to the Court's completion of its
screening obligation. See Jones v. Bock, 549 U.S.
199, 213-214 (2007). If Plaintiff s Complaint is not
dismissed on initial screening, the Court will enter further
orders governing submissions of proof in support of
Plaintiffs claims. The Court will deny the Plaintiffs Motion
to Assert ...