Allen v. Arpaio et al

Filing 87

ORDER ADOPTING 83 Magistrate Judge's Report and Recommendation. Defendants Manzano, Jhonson, and Hendrix are dismissed without prejudice. IT IS FURTHER ORDERED denying 85 Plaintiff's Motion to Appoint Counsel. This matter shall remain referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings. Signed by Judge Steven P Logan on 8/14/15. (LSP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Michael Carl Allen, 9 10 Plaintiff, vs. 11 12 Sgt. Modi, et al., Defendants. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-14-00378-PHX-SPL (JFM) ORDER 15 On January 23, 2015, Plaintiff Michael Carl Allen, who is confined in the Arizona 16 State Prison Complex – Lewis, filed a pro se civil rights Second Amended Complaint 17 pursuant to 42 U.S.C. § 1983. (Doc. 48.) The Honorable James F. Metcalf, United States 18 Magistrate Judge, issued a Report and Recommendation (“R&R”) (Doc. 83), 19 recommending that Defendants Manzano, Jhonson, and Hendrix be dismissed without 20 prejudice. Plaintiff has objected to the R&R and moves for appointment of counsel (Doc. 21 85). For the following reasons, the Court accepts and adopts the R&R, and denies his 22 request. 23 I. Report and Recommendation 24 The Court may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 26 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to 27 which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. 28 Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled 1 as of right to de novo review of evidence and arguments raised for the first time in an 2 objection to the R&R, and whether the Court considers the new facts and arguments 3 presented is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 4 2000). 5 Here, after carefully detailing the history of attempts to assist Plaintiff to 6 accomplish service, and the notice provided to him to timely prosecute his case, the 7 Magistrate Judge concluded that Plaintiff had failed to show that good cause or excusable 8 neglect justifies a further extension of the time to complete service on Defendants 9 Manzano, Jhonson, and Hendrix. Among other reasons, the Magistrate Judge duly noted 10 that “[t]his case is already over 17 months old, the time for service expired over two 11 months ago, and the case is nearing completion, with all but the final pretrial motions 12 deadline expired.” (Doc. 83.) While Plaintiff has objected to the R&R, his objection does 13 not point to any specific flaw in the Magistrate Judge’s analysis or findings. Instead, he 14 offers only general objections. To that end, these objections largely consist of criticisms 15 of the justice system and a general reiteration of the complaints that were addressed by 16 the Magistrate Judge, but without any reference to the Magistrate Judge’s findings with 17 regard to those complaints. 18 Under Rule 72 of the Federal Rules of Civil Procedure, the district judge must 19 review de novo those portions of the R&R that have been “properly objected to.” 20 Fed.R.Civ.P. 72(b). A proper objection requires “specific written objections to the 21 proposed findings and recommendations.” Id.; see 28 U.S.C. § 636(b)(1) (emphasis 22 added). The inherent purpose of this requirement is judicial economy. See Thomas v. Arn, 23 474 U.S. 140, 149 (1985); Reyna-Tapia, 328 F.3d at 1121. Because de novo review of an 24 entire R&R would defeat this purpose, a general objection serves to have the same effect 25 as if Plaintiff had failed to object entirely. As a result, the Court has no obligation to 26 review Plaintiff’s general objection to the R&R. See Thomas, 474 U.S. at 149 (no review 27 at all is required for “any issue that is not the subject of an objection.”). The R&R will 28 therefore be adopted and the unserved defendants will be dismissed. 2 1 II. Appointment of Counsel 2 Next, Plaintiff moves for appointment of counsel. He argues that counsel should 3 be appointed “to level out the playing field of professional assistance [and] to keep 4 Plaintiff true to [the] Court’s schedule. (Doc. 85 at 3.) 5 There is no constitutional right to the appointment of counsel in a civil case. See 6 Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of 7 Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “However, a court may 8 under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 9 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (quoting 10 Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). “When 11 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 12 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his 13 claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d 14 at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v. 15 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “Neither of these considerations is 16 dispositive and instead must be viewed together.” Palmer, 560 F.3d at 970 (citing 17 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 18 Having considered both elements, Plaintiff has not shown that exceptional 19 circumstances are present that would require the appointment of counsel in this case. As 20 Defendant Modi’s Motion for Summary Judgment is presently under advisement, the 21 Court cannot say that Plaintiff has demonstrated a likelihood of success on the merits at 22 this juncture. Nor has Plaintiff shown that he is experiencing difficulty in litigating this 23 case because of the complexity of the issues involved. Rather, Plaintiff’s filings with the 24 Court, as exemplified by the instant objection and motion, indicate that Plaintiff is 25 capable of navigating his proceedings and presenting arguments to the Court. See 26 Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 27 complexity of the relevant issues was a demonstration of the need for development of 28 further facts, practically all cases would involve complex legal issues.”). Plaintiff is in no 3 1 different position than many pro se prisoner litigants. Having failed to show that 2 exceptional circumstances are present, Plaintiff’s request for appointment of counsel will 3 be denied. 4 Accordingly, 5 IT IS ORDERED: 6 1. 7 accepted and adopted by the Court; 2. 8 9 12 That Defendants Manzano, Jhonson, and Hendrix are dismissed without prejudice; 3. That Plaintiff’s Motion for Appointment of Counsel (Doc. 85) is denied; 4. 10 11 That Magistrate Judge’s Report and Recommendation (Doc. 83) is That this matter shall remain referred to Magistrate Judge James F. Metcalf and 13 pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial 14 proceedings as authorized under 28 U.S.C. § 636(b)(1). 15 Dated this 14th day of August, 2015. 16 17 Honorable Steven P. Logan United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4

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