# (PC) Sekona v. Perez

> District Court, E.D. California · April 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10051803

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 ETUATE SEKONA, 1:19-cv-0400-JLT-GSA-PC
12 Plaintiff, FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
13 v. MOTION FOR APPOINTMENT OF
COUNSEL AND INVESTIGATOR BE
14 PEREZ, et al., DENIED, AND THAT DEFENDANTS R.
PEREZ AND MALDONADO BE
15 Defendants. DISMISSED FROM THIS ACTION
PURSUANT TO RULE 4(m)
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OBJECTIONS, IF ANY, DUE BY MAY 1,
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24 I. BACKGROUND
25 Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
26 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s
27 Third Amended Complaint, filed December 13, 2021, against defendants R. Perez, L. Munoz, C.
28 Sims, and Maldonado (“Defendants”) for failure to protect Plaintiff in violation of the Eighth
1 Amendment.1 (ECF No. 39.) On February 17, 2022, the Court found service of the Third
2 Amended Complaint appropriate and directed e-service on all of the Defendants in this case.
3 (ECF No. 44.)
4 On March 10, 2022, the Attorney General’s Office filed a notice of intent to not waive
5 service by defendants R. Perez and Maldonado, ECF No. 47, and the Court sent service
6 documents to the United States Marshal (“Marshal”). On September 8, 2022, the Marshal filed
7 returns of service unexecuted as to defendants Maldonado and R. Perez. (ECF No. 59.) The
8 unexecuted summonses indicated that the Litigation Coordinator at Kern Valley State Prison
9 (KVSP) reported that no officers by the names Maldonado or R. Perez were found at KVSP. (Id.)
10 On October 18, 2022, the Court issued an order directing the Marshal to contact the Legal
11 Affairs Division of the CDCR to obtain current addresses for defendants R. Perez and Maldonado
12 and to serve them with process at their current addresses. (ECF No. 65.) The Marshal was again
13 unable to locate and serve defendants R. Perez and Maldonado. On November 1, 2022, the
14 Marshal filed returns of service unexecuted. (ECF No. 67.) The Marshal reported contacting
15 CDCR’s Legal Affairs Department but found no additional information to identify and locate
16 either of the two Defendants. (Id.)
17 On February 24, 2023, the Court issued an order requiring Plaintiff to show cause why
18 Defendants R. Perez and Maldonado should not be dismissed from this case for failure to serve
19 them. (ECF No. 75.) On March 23, 2023, Plaintiff responded to the order. (ECF No. 81.)
20 Plaintiff failed to provide current addresses for the two Defendants and requested Court-
21 appointed counsel and a special investigator to locate defendants R. Perez and Maldonado. (Id.)
22 II. RULE 4(m) - SERVICE OF PROCESS

23 Pursuant to Rule 4(m),

24 Time Limit for Service. If a defendant is not served within 120 days after the
filing of the complaint, the courtBon motion or on its own after notice to the
25 plaintiffBmust dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But, if the plaintiff shows good
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28 1 On February 15, 2022, the Court issued an order dismissing all other claims and
defendants from this action based on for Plaintiff’s failure to state a claim. (ECF No. 43.)
cause for the failure, the court must extend the time for service for an appropriate
1 period.

2 Fed. R. Civ. P. 4(m).
3 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of
4 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated
5 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service
6 of the summons and complaint and . . . should not be penalized by having his action dismissed
7 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his
8 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912
9 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472
10 (1995). “So long as the prisoner has furnished the information necessary to identify the
11 defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Id. (quoting
12 Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff
13 fails to provide the Marshal with accurate and sufficient information to effect service of the
14 summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is
15 appropriate. Id. at 1421-22.
16 III. DISCUSSION
17 The Court and the Marshal have exhausted the avenues available for identifying and
18 locating defendants R. Perez and Maldonado on behalf of Plaintiff, and Plaintiff appears unable
19 to provide the Marshal with a current address at which defendants R. Perez and Maldonado can
20 be located. These findings and recommendations shall act as notice to Plaintiff of the Court’s
21 intent to dismiss defendants R. Perez and Maldonado for failure to serve process.
22 A. Motion to Appoint Counsel
23 Plaintiff has requested court-appointed counsel. Plaintiff does not have a constitutional
24 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
25 and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
26 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109
27 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request
28 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
1 Without a reasonable method of securing and compensating counsel, the court will seek
2 volunteer counsel only in the most serious and exceptional cases. In determining whether
3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success
4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
6 In the present case, the court does not find the required exceptional circumstances. The
7 fact that Plaintiff is indigent and unable to afford counsel does not make Plaintiff’s case
8 exceptional. Moreover, based on a review of the record in this case the Court finds that Plaintiff
9 can adequately articulate his claims. Thus, the court does not find the required exceptional
10 circumstances and therefore Plaintiff’s motion for appointment of counsel should be denied
11 without prejudice to renewal of the motion at a later stage of the proceedings.
12 B. Motion for Court-appointed Investigator
13 Plaintiff requests the Court to appoint an investigator to assist him with finding current
14 addresses for defendants R. Perez and Maldonado, to enable service of process. It is well settled
15 that “there is no statutory authorization for a court-appointed investigator for civil litigants
16 proceeding in forma pauperis.” Witkin v. Lotersztain, No. 219CV0406TLNKJNP, 2022 WL
17 7099719, at *2 (E.D. Cal. Oct. 12, 2022) (citing Snow v. Mar, 785 F. App’x 465, 466 (9th Cir.
18 2019) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 n.7 (9th Cir. 2002)).
19 Plaintiff has been granted leave to proceed with this action in forma pauperis pursuant to
20 28 U.S.C. § 1915. (ECF No. 6.) However, the in forma pauperis statute does not authorize the
21 expenditure of public funds for investigators. See 28 U.S.C. § 1915; see also Hadsell v. Internal
22 Revenue Service, 107 F.3d 750, 752 (9th Cir. 1997); Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.
23 1993); Brown v. Johnson & Johnson, Inc., Case No. 1:17-cv-01285-AWI-EPG, 2018 WL
24 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (holding that “the Court is without authority to appoint
25 an investigator or researcher to assist Plaintiff.”); also see Gaines v. Harbert, No. 07cv1320-
26 J(CAB), 2009 WL 1481327, at *1 (S.D. Cal. May 27, 2009) (denying pro se prisoner’s motion
27 for appointment of investigator as Section 1915 does not require federal courts to pay expert fees
28 or other costs); Khademi v. South Placer Co. Jail, No. 2:21-cv-1498 KJM DB P, at *1 (E.D. Cal.
1 Oct. 18, 2021) (“the court is aware of no authority permitting it to provide plaintiff [a state
2 prisoner proceeding pro se] an investigator”).
3 Plaintiff's instant motion concerns funding, because only litigants who need funding need
4 permission to hire a private investigator. Santos v. Baca, No. 211CV01251KJDNJK, 2014 WL
5 12910916, at *2 (D. Nev. Aug. 19, 2014). The expenditure of public funds on behalf of an
6 indigent litigant is proper only when authorized by Congress. Id. (citing Tedder v. Odel, 890
7 F.2d 210, 211-12 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct.
8 2086, 2089, 48 L.Ed.2d 666 (1976)). The two potential sources of Congressional authorization
9 are 28 U.S.C. § 1915 and 18 U.S.C. § 3006A. Id. First, “[t]he in forma pauperis statute, 28
10 U.S.C. § 1915, does not authorize the expenditure of funds for a private investigator.” Id. (citing
11 Covarrubias v. Gower, 2014 WL 342548, *1 (N.D. Cal. Jan. 28, 2014) (citing Tedder, 890 F.2d
12 at 211-12 (pauper statute does not waive the payment of fees or expenses for an indigent’s
13 witnesses)). Second, the Criminal Justice Act, 18 U.S.C. § 3006A, does not apply because this
14 is a civil, and not a criminal, case. Id. Thus, no Congressional authorization exists for the
15 appointment of a private investigator.
16 Accordingly, Plaintiff’s request to appoint an investigator to assist him should be denied.
17 IV. RECOMMENDATIONS AND CONCLUSION
18 Based on the foregoing, IT IS HEREBY RECOMMENDED that:
19 1. Plaintiff’s motion for appointment of counsel and an investigator be denied; and
20 2. Defendants R. Perez and Maldonado be dismissed from this action based on
21 Plaintiff’s failure to provide information sufficient for the Marshal to effect
22 service of process. Fed. R. Civ. P. 4(m).
23 These Findings and Recommendations will be submitted to the United States District
24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or
25 before May 1, 2023, any party to this case may file written objections with the Court. The
26 document should be captioned “Objections to Magistrate Judge’s Findings and
27 Recommendations.” Any reply to the objections shall be served and filed within ten days after
28 the date the objections are filed. The parties are advised that failure to file objections within the
1 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
2 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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5 Dated: April 6, 2023 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10051803. Public record. Not legal advice.