Immerman v. U.S. Department of Agriculture
Opinion of the Court
MEMORANDUM
Moshe Immerman (“Immerman”) appeals from the district court’s dismissal of his complaint for failure to properly and timely serve the summons and complaint under Fed.R.Civ.P. 4(i). Immerman also challenges the district court’s refusal to appoint him counsel and denial of his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part and remand.
Given the unique circumstances of this case—Immerman’s pro se, in forma pauperis status, the confusion regarding the service instructions, the fact that process was served on the named defendant, and that the statute of limitations had run on Immerman’s claim—we conclude that the district court abused its discretion when it dismissed Immerman’s complaint instead of granting Immerman a reasonable extension of time within which to complete service as required by Rule 4(i).
Immerman also argues that the district court abused its discretion in denying his motion for appointment of counsel. We disagree. A district court has the discretion to appoint counsel to represent a person unable to afford representation under 28 U.S.C. § 1915(e)(1). We have held that a district court may only do so under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The district court did not err in concluding that, on the record before it, exceptional circumstances warranting appointment of counsel did not exist.
AFFIRMED in part, REVERSED in part and REMANDED. The parties shall bear their own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because we conclude that the district court abused its discretion in dismissing Immerman's complaint, we need not address the motion for reconsideration.
Reference
- Full Case Name
- Moshe IMMERMAN v. U.S. DEPARTMENT OF AGRICULTURE, being sued as Ann M. Veneman, Secretary
- Cited By
- 1 case
- Status
- Published