Green v. Martel et al

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/27/2018 RECOMMENDING that this action be dismissed without prejudice for failure to state a claim upon which relief could be granted, and the Clerk be directed to enter judgment and close the case. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WARREN CLEVELAND GREEN,

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No. 2:17-cv-0429-JAM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MICHAEL MARTEL, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The court dismissed his complaint for failure to state a claim but granted him

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leave to file an amended complaint. See ECF No. 16 (explaining that plaintiff’s allegations of

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mail tampering were far too speculative to state a cognizable claim). The court also denied

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plaintiff’s request for counsel. See ECF No. 16 at 5. Rather than amend his complaint, plaintiff

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filed a “response” to the court’s order, stating that he cannot file an amended complaint until the

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court appoints him either an investigator or an attorney. ECF No. 20. For the reasons stated

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below, the court will neither appoint counsel nor an investigator for plaintiff. And because

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plaintiff indicates that he will not amend his complaint, this action should be dismissed for failure

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to state a claim.

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To the extent plaintiff seeks reconsideration of order denying his request for appointment
of counsel, that request is denied. Further, his request for appointment of an investigator is
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denied. The expenditure of public funds on behalf of an indigent litigant is proper only when

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authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir.1989). The in forma pauperis

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statute does not authorize the expenditure of public funds in a civil rights case for the purposes

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sought by plaintiff. Therefore, the court will not appoint an investigator to assist plaintiff with this

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case.

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As noted, plaintiff has declined the opportunity to amend. See ECF No. 20 at 3-4 (stating

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he cannot file an amended complaint because this action is meant to be a request for an

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investigation and “not a lawsuit”). Regardless, it appears that any amended complaint would be

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futile. Plaintiff’s response to the court’s March 15, 2018 order dismissing his complaint with

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leave to amend demonstrates that he is unable to make his allegations of mail tampering any more

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concrete. See, e.g., id. at 3 (alleging that the media’s lack of response to his correspondence

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about his false imprisonment is indicative of mail tampering because “the media [ ] report[s]

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injustices.”).

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In light of the above, IT IS HEREBY RECOMMENDED that this action be dismissed

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without prejudice for failure to state a claim upon which relief could be granted, and the Clerk of

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the Court be directed to enter judgment and close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 27, 2018.

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