Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 334 (9th Cir. 1989)

John LYNCH, Plaintiff-Appellant,v.Fred B. PEARCE, Jack Armstrong, Richard Gerety, MultnomahCounty, Richard Rivera, Albertson Food Centers, Inc., TerryScott Dixson, Anthony James Tumbaga, American Telephone andTelegraph Company, and Rescue Towing, Defendants-Appellees.

No. 88-4201.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 12, 1989.* Decided Sept. 20, 1989.

Helen J. Frye, District Judge, Presiding.

Before SKOPIL, TROTT, and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

John Lynch was convicted in an Oregon state court on charges of burglary and attempted murder. While incarcerated, he brought this action against numerous defendants alleging violations of his civil rights arising from the circumstances surrounding his arrest and detention. On appeal, he argues that the district court erred by (1) refusing to appoint counsel for him as an indigent civil litigant, (2) failing to enter default judgment against several of the defendants, and (3) dismissing the action. We reject Lynch's arguments, and we affirm.

In exceptional circumstances a district court may in its discretion appoint counsel to represent an indigent civil litigant under 28 U.S.C. § 1915(d). Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986). In making its determination, the court evaluates (1) the likelihood of the litigant's success on the merits and (2) the ability of the party to articulate claims pro se given the complexity of the legal issues in the case. Id. at 1331. Under the first prong, Lynch did not show a likelihood of success on the merits. Under the second prong, the "1983 form" provided Lynch by the Oregon State Penitentiary gave him sufficient guidance in stating his claim. Thus, we conclude that the court did not abuse its discretion in denying the appointment of counsel. We reject as meritless Lynch's alternative argument that the court should have barred counsel for the defendants.

During pre-trial proceedings, Lynch requested the court to enter default judgments against various defendants. The court denied the motions except against defendant Dixson. Later, however, the court set aside Dixson's default judgment.

A district court's decision whether to enter default judgment pursuant to Fed. R. Civ. P. 55(b) is reviewed for abuse of discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980). We find no abuse here. The record does not show that these various defendants were properly served and that they subsequently failed to answer the complaint.

The court set aside the judgment against Dixson when he established good cause under Fed. R. Civ. P. 60(b) for his failure to answer the complaint. Dixson established that he had mistakenly assumed that he was being defended by counsel for his employer, co-defendant Albertson Food Centers. The district court did not abuse its discretion when it concluded that Dixson's mistake was sufficient to justify relief from a judgment under Rule 60(b). See Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 832 (9th Cir.) (applying abuse of discretion standard), cert. denied, 479 U.S. 829 (1986).

To succeed on his section 42 U.S.C. § 1983 claims, Lynch must show that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived Lynch of "rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535 (1981). We conclude that Lynch's section 1983 action was properly dismissed.

Lynch's claims against the county, its employees, and AT & T focus on allegations that he was denied use of a telephone during his initial custody and later detention. There is, however, no independent federal guarantee of phone use, even after arrest. Moreover, since Lynch has not alleged that he was denied all access to counsel, any restrictions on his phone access do not rise to the level of a constitutional deprivation.

Lynch also complained that his automobile was damaged after being towed away by the county, that the police's investigation of the crime was inadequate, and that the arresting officer should have interviewed more witnesses. None of these complaints, however, allege any deprivation of a federally protected right.

Lynch also sued Albertson Food Center, the store that he robbed, and two Albertson's employees. He alleged that the two employees chased, assaulted, and battered him. Lynch's prior unsuccessful suit in state court against these same defendants, however, bars this action on res judicata grounds.

Finally, Lynch sued the towing company directed by the county to move Lynch's car following his arrest. The district court dismissed this claim for Lynch's failure to prosecute, an order which we review for an abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Lynch sought a default judgment against the towing company nearly nineteen months after he instituted this action. The trial court found that (1) service on that defendant was defective, and (2) Lynch waited too long to seek the default judgment. The district court did not abuse its discretion in dismissing for failure to prosecute based on these findings.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3