Hook v. Mills

Filing 7

ORDER: The Report and Recommendation (Doc. # 4 ) is ACCEPTED and ADOPTED. Plaintiff's construed Motion for Leave to Proceed in forma pauperis (Doc. # 2 ) is DENIED WITHOUT PREJUDICE. Plaintiff's Motion for Appointed Counsel (Doc. # [ 5]) is DENIED. Plaintiff's Motion for Continuance (Doc. # 6 ) is DENIED. The Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff is authorized to file an Amended Complaint by August 14, 2017. Failure to file an Amended Complaint by August 14, 2017, will result in dismissal of the action and case closure. 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-1104-T-33TBM

STEVE MILLS,
Defendant.
_______________________________/
ORDER
This matter is before the Court on consideration of
United States Magistrate Judge Thomas B. McCoun’s Report and
Recommendation (Doc. # 4), filed on July 5, 2017, recommending
that Plaintiff’s construed Motion for Leave to Proceed in
forma pauperis be denied.

Judge McCoun also recommends that

the Complaint be dismissed with leave to file an Amended
Complaint.

The

Report

and

Recommendation

provided

that

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

However, rather than objecting to the

Report and Recommendation, Plaintiff filed a Motion requesting
court appointed counsel (Doc. # 5) and a Motion to continue.
(Doc. # 6). As explained below, the Court denies Plaintiff’s
Motions, adopts the Report and Recommendation, and dismisses
the Complaint with leave to file an Amended Complaint.

I.

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

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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
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 in order to obtain
a complete and fair hearing to ensure justice.” (Doc. # 6).
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 summarizes the Complaint as

follows:
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The Complaint is, in parts, illegible and, in full,
a
rambling
statement
largely
impossible
to
decipher.
The Complaint wholly fails to comply
with Rules 8 and 10 of the Federal Rules of Civil
Procedure, which requires a short and plain
statement
in
numbered
paragraphs
showing
entitlement to relief. While it does appear that
the allegations relate to an alleged assault on
February 18, 2016, in which Detective Mills was
somehow involved, the Court’s jurisdiction is
unclear and a number of the allegations are
indecipherable. In sum, even assuming the Court’s
jurisdiction and compliance with Rules 8 and 10, I
cannot determine if Plaintiff has set forth the
allegations necessary to state a claim upon which
relief may be granted or whether this Court has
jurisdiction. Moreover, I see no way a Defendant
could or should be called upon to respond to such
incoherent and indecipherable allegations.
(Doc. # 4 at 3-4).
Based

on

recommends

these

denial

of

observations,
in

forma

the

Magistrate

pauperis

status

Judge
without

prejudice and further recommends dismissal of the Complaint
with

leave

to

amend.

The

Magistrate

Judge

recommends

providing Plaintiff with a 20 day window for filing an Amended
Complaint and specifies that any Amended Complaint should (1)
clearly set forth a cause of action consistent with the
pleading requirements of the Federal Rules of Civil Procedure
and (2) clearly states the basis of this Court’s jurisdiction.
As of this date, there are no objections to the Report
and Recommendation, and the time to file such objections has
elapsed.

After conducting a careful and complete review of
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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

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).
III. Conclusion
Upon due consideration of the record, including the
Report

and

Recommendation

as

well

as

the

Plaintiff’s

submissions, the Court denies Plaintiff’s requests for the
appointment of counsel and for a continuance, adopts the
Report and Recommendation, denies in forma pauperis status
without prejudice, and dismisses the Complaint with leave to
file an Amended Complaint by August 14, 2017. Failure to file

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an Amended Complaint by August 14, 2017, will result in the
dismissal and closure of the case.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Report and Recommendation (Doc. # 4) is ACCEPTED and
ADOPTED.

(2)

Plaintiff’s construed Motion for Leave to Proceed in
forma pauperis (Doc. # 2) is DENIED WITHOUT PREJUDICE.

(3)

Plaintiff’s Motion for Appointed Counsel (Doc. # 5) is
DENIED.

(4)

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

(5)

The Complaint is DISMISSED WITHOUT PREJUDICE.

Plaintiff

is authorized to file an Amended Complaint by August 14,
2017. Failure to file an Amended Complaint by August 14,
2017, will result in dismissal of the action and case
closure.
DONE and ORDERED in Chambers in Tampa, Florida, this 25th
day of July, 2017.

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