Hook v. Ojeda

Filing 8

ORDER: The Report and Recommendation (Doc. # 5 ) is ACCEPTED and ADOPTED. Plaintiff's construed Motion for Leave to Proceed in forma pauperis (Doc. # 2 ) is DENIED. Plaintiff's Motion for Appointed Counsel (Doc. # 6 ) is DENIED. Plaintiff's Motion for Continuance (Doc. # 7 ) is DENIED. This action is DISMISSED. The Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 7/25/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS MANNING HOOK,
Plaintiff,
v.

Case No. 8:17-cv-1100-T-33TBM

HONORABLE REINALDO OJEDA,
Defendant.
_______________________________/
ORDER
This matter is before the Court on consideration of
United States Magistrate Judge Thomas B. McCoun’s Report and
Recommendation (Doc. # 5), filed on July 5, 2017, recommending
that Plaintiff’s construed Motion for Leave to Proceed in
forma pauperis be denied.
the

case

be

dismissed

Judge McCoun also recommends that
as

frivolous.

The

Report

and

Recommendation provided that Plaintiff had an opportunity to
object during a finite, 14-day period. (Id. at 5).
rather

than

objecting

to

the

Report

and

However,

Recommendation,

Plaintiff filed a Motion requesting court appointed counsel
(Doc. # 6) and a Motion to continue. (Doc. # 7). As explained
below, the Court denies Plaintiff’s Motions, adopts the Report
and Recommendation, and dismisses the case as frivolous.
I.

Motion to Appoint Counsel and Motion to Continue
Plaintiff, an individual appearing pro se, requests that

the Court appoint counsel to assist in prosecuting this

matter. Title 28 U.S.C. § 1915(e)(1) provides that “[t]he
court may request an attorney to represent any person unable
to afford counsel.”

However, the appointment of counsel in a

civil case is not guaranteed and lies within the discretion of
the trial court.

Bass v. Perrin, 170 F.3d 1312, 1320 (11th

Cir. 1999) (citations omitted).
“The appointment of counsel is [ ] a privilege that is
justified only by exceptional circumstances, such as where the
facts and legal issues are so novel or complex as to require
the assistance of a trained practitioner.”

Poole v. Lambert,

819 F.2d 1025, 1028 (11th Cir. 1987) (citations omitted).
The key is whether the pro se litigant needs
assistance presenting the essential merits of his
position to the court.
The following factors
determine whether exceptional circumstances exist:
(1) the type and complexity of the case; (2)
whether the litigant is capable of adequately
presenting his case; (3) whether the litigant is in
a position adequately to investigate the case; and
(4) whether the evidence will consist in large part
of conflicting testimony so as to require skill in
the presentation of evidence and in crossexamination.
Burgess v. Bradshaw, 626 F. Appx. 257, 259 (11th Cir.
2015).

Further,

The

Supreme

Court

has

explained

that

appointment of counsel in a civil case may be appropriate when
“quasi-criminal penalties or severe civil remedies are at
stake, such as those in a civil commitment proceeding or when

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an indigent risks losing his or her child in a custody case.”
Washington v. United States, 93 Fed. Cl. 706, 708–09 (Fed. Cl.
2010). Thus, “only in civil cases that present an extreme
hardship to petitioner are courts empowered to cause legal
assistance to be provided.” Id.
Plaintiff has not discussed the factors relevant to the
appointment of counsel or otherwise demonstrated any reason
why the Court should appoint counsel to represent him.

This

is not a case in which exceptional circumstances justify the
appointment of counsel to a pro se plaintiff, and the Court
accordingly denies the Motion for Appointment of Counsel.
In addition, Plaintiff has not advanced any specific
reason for the requested continuance.

In the Motion to

Continue, Plaintiff requests “a continuance for the above
listed cause in order to allow plaintiff the time to file and
receive rulings on existing and connected court motions in
order to receive a fair hearing and ensure justice.” (Doc. #
7).

Finding the Motion to be devoid of substance, the Court

denies the Motion for a Continuance.
II.

Report and Recommendation and Dismissal of Complaint
The Report and Recommendation explains that Plaintiff’s

Complaint names a state Circuit Court Judge as the Defendant.
And, “Judge Ojeda is entitled to absolute judicial immunity
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from damages arising from those acts taken in his judicial
capacity

unless

he

acted

in

the

clear

absence

of

all

jurisdiction. Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir.
2005).” (Doc. # 5 at 4).

Because the Complaint seeks to

impose liability upon an individual immune from suit, the
Magistrate Judge recommends denial of in forma pauperis status
and

further

recommends

dismissal

of

the

Complaint

as

frivolous.
As of this date, there are no objections to the report
and recommendation, and the time for the parties to file such
objections has elapsed.
After conducting a careful and complete review of the
findings and recommendations, a district judge may accept,
reject

or

modify

the

magistrate

judge’s

report

and

recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright,
681 F.2d 732 (11th Cir. 1982).

In the absence of specific

objections, there is no requirement that a district judge
review factual findings de novo, Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993), and the court may accept,
reject or modify, in whole or in part, the findings and
recommendations.

28 U.S.C. § 636(b)(1)(C).

The district

judge reviews legal conclusions de novo, even in the absence
of an objection.

See Cooper-Houston v. S. Ry. Co., 37 F.3d
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603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F.
Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th
Cir. 1994).
After conducting a careful and complete review of the
findings, conclusions and recommendations, and giving de novo
review to matters of law, the Court accepts the factual
findings and legal conclusions of the Magistrate Judge and the
recommendation of the Magistrate Judge.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Report and Recommendation (Doc. # 5) is ACCEPTED and
ADOPTED.

(2)

Plaintiff’s construed Motion for Leave to Proceed in
forma pauperis (Doc. # 2) is DENIED.

(3)

Plaintiff’s Motion for Appointed Counsel (Doc. # 6) is
DENIED.

(4)

Plaintiff’s Motion for Continuance (Doc. # 7) is DENIED.

(5)

This action is DISMISSED.

(6)

The Clerk shall CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 25th

day of July, 2017.

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