Martinez Jr. v. Romero et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSEPH A. MARTINEZ, JR.,
Plaintiff,
v. No. 25-cv-615 SMD/KK
MARCELINO ROMERO, et al.,
Defendants.
ORDER TO CURE DEFICIENCIES, GRANTING AMENDMENT,
AND DENYING MOTION TO APPOINT COUNSEL
This matter is before the Court on Plaintiff’s Prisoner Complaint for Violation of Civil
Rights (Doc. 1, “Complaint”). Plaintiff is incarcerated and proceeding pro se. He brings claims
relating to medical treatment under 42 U.S.C. § 1983. (Doc. 1). Also before the Court are
Plaintiff’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (Doc. 2, “IFP
Motion”), Moton to Amend Complaint (Doc. 4), and Motion for Appointment of Counsel (Doc. 6).
Plaintiff seeks to amend his Complaint by adding facts and details relating to his claims.
(Doc. 4). Rather than attempting to discern Plaintiff’s claims raised in piecemeal filings, the
Court grants the Motion to Amend and will permit Plaintiff to file a single complaint within 30
days of entry of this Order that includes all claims/factual allegations. The Clerk’s Office will
mail Plaintiff a form 42 U.S.C. § 1983 complaint to assist with that pleading. By the same
deadline, Plaintiff must submit an inmate account statement reflecting transactions for a six-month
period. See 28 U.S.C. § 1915(a)(2). Such statement is required in all cases where, as here, the
plaintiff is incarcerated and moves to proceed in forma pauperis. All filings should include the
case number (No. 25-cv-615 SMD/KK) and be labeled as legal mail. The failure to timely comply
with both directives in this Order may result in dismissal of this case without further notice.
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Regarding Plaintiff’s Motion for Appointment of Counsel, “[c]ourts are not authorized to
appoint counsel in § 1983 cases; instead, courts can only ‘request’ an attorney to take the case.”
Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). The decision to make this request is a matter
of discretion. Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012). Factors guiding the Court’s
decision include “the merits of the claims, the nature of the claims, [the inmate’s] ability to present
the claims, and the complexity of the issues.” Rachel, 820 F.3d at 397. Considering these
factors, the Court will not take the extraordinary step of asking a local attorney to represent
Plaintiff on a pro bono basis at this time. The claims are not complex, and it is at least
questionable whether Plaintiff will prevail on the facts alleged. Further, Plaintiff’s filings reflect
that he is able to prosecute this action on a pro se basis. The Court will therefore deny Plaintiff’s
Motion to Appoint Counsel without prejudice.
IT IS ORDERED that Plaintiff’s Motion to Amend (Doc. 4) is GRANTED in part, and
within thirty (30) days of entry of this Order, Plaintiff must: (1) file a single § 1983 complaint that
includes all claims and factual allegations; and (2) file an inmate account statement reflecting
transactions for a six-month period.
IT IS FURTHER ORDERED that the Clerk’s Office shall MAIL Petitioner a blank
42 U.S.C. § 1983 civil rights complaint.
IT IS FINALLY ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc. 6)
is DENIED without prejudice.
_______________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
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