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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CLAUD CAVINESS,

Plaintiff,

v.

GORDON R. ENGLAND, SECRETARY OF

THE NAVY, U.S. DEPARTMENT OF THE

NAVY,

 Defendant.

CIV. S-04-2388 EJG PAN PS

ORDER

—NFN—

On April 4, 2005, this court directed plaintiff to show

cause why this action should not be dismissed for failure to

serve process upon defendant. Fed. R. Civ. P. 4(m) (the court

shall dismiss an action if service of the summons and complaint

is not made upon defendant within 120 days after the filing of

the complaint). The complaint in this action was filed November

8, 2004, and accordingly the deadline for serving process was 

March 8, 2005.

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2

Plaintiff timely responded that he had been under the

misapprehension the Clerk of Court would serve process. 

Plaintiff stated that he served the complaint upon defendant

April 12 and submitted a proof of service. 

Plaintiff’s attempt to serve process does not conform to

the requirements of Fed. R. Civ. P. 4, both generally (see Rule

4(a)-(c)) and in the special circumstances wherein the defendant

is an officer or employee of the United States (see Rule 4(i)). 

Accordingly, plaintiff is hereby accorded an additional

11 days within which properly to serve the summons and complaint

upon defendant U.S. Secretary of the Navy, to file proof of such

service, or to show cause to the court in writing why this action

should not be dismissed. 

Next, plaintiff requests this court appoint counsel due

to plaintiff’s financial limitations, his physical disability

(pacemaker defibrillator), and honorable service to this country

(plaintiff is a 68-year old Air Force veteran with 22 years

military service and 18 years civilian service).

Plaintiff’s complaint challenges a decision of the U.S.

Equal Employment Opportunity Commission that defendant did not

discriminate or retaliate against plaintiff. Requests for

appointment of counsel in Title VII cases are governed by 42

U.S.C. § 2000e-5(f)(1), which provides in pertinent part:

Upon application by the complainant and in such circumstances

as the court may deem just, the court may appoint an attorney

for such complainant and may authorize the commencement of the

action without the payment of fees, costs, or security. 

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3

In assessing whether to appoint counsel pursuant to this

statute, the court must consider the following: (1) plaintiff’s

financial resources; (2) plaintiff’s efforts to secure counsel;

and (3) whether plaintiff’s claim has merit. Bradshaw v.

Zoological Society of San Diego, 662 F.2d 1301, 1318 (9th Cir.

1981) (Bradshaw II).

Plaintiff has failed to demonstrate financial need. He paid

the filing fee in this action (rather than file an application to

proceed in forma pauperis) and states only that he “is

financially unable to afford an attorney.” Response to Order to

Show Cause, at p. 2. While only a minimal level of indigency

need be shown under Bradshaw, 662 F.2d at 1319 (lesser showing of

indigency required for appointment of counsel than that required

to proceed in forma pauperis), plaintiff has made no showing. 

Plaintiff has also failed to demonstrate, or even mention,

his efforts to secure counsel.

Since plaintiff has satisfied neither the first nor second

prong of the Bradshaw II analysis, the court need not assess the

third, whether plaintiff’s claims appear to have merit.

Accordingly, plaintiff’s motion for the appointment of

counsel is denied. 

So ordered.

Dated: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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