Tierney v. Torikawa et al

Filing 34

ORDER DENYING MICHAEL C. TIERNEY'S 29 APPEAL OF MAGISTRATE JUDGE DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on June 19, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notif ications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,,

)
)
Plaintiff,
)
)
vs.
)
)
LOIS TORIKAWA, ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL NO. 12-00056 LEK-RLP

ORDER DENYING MICHAEL C. TIERNEY’S
APPEAL OF MAGISTRATE JUDGE DECISION
Before the Court is pro se Plaintiff Michael C.
Tierney’s Objections to U.S. Magistrate Judge Richard L. Puglisi
Denying Motion for Appointment of Counsel (the “Appeal”), filed
on June 5, 2012.

The Court finds this matter suitable for

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

After careful

consideration of the Motion and the relevant legal authority,
Tierney’s Appeal is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
Tierney is a prisoner at the Oahu Community
Correctional Facility and was incarcerated at Waiawa Correctional
Facility (“WCF”) at the time of the subject incident.

On

January 25, 2012, he filed his Prisoner Civil Rights Complaint

(“Complaint”) against Defendants Scott Harrington, the WCF
Warden, Lois Torikawa, a social worker, Irene Revilla, a nurse,
and Matt Pattioay, a fellow WCF inmate (collectively,
“Defendants”).1

The Complaint alleges that Harrington, Torikawa,

and Revilla ordered Pattioay to assault Tierney, then failed to
provide timely medical care.

[Dkt. no. 1.]

On May 15, 2012, this Court issued its Order Dismissing
Complaint in Part; Denying Temporary Restraining Order; and
Directing Service (the “May 15, 2012 Order”).

[Dkt. no. 21.]

Tierney thereafter filed his Motion for Appointment of Counsel,
which was taken under advisement by United States Magistrate
Judge Richard L. Puglisi.

[Dkt. no. 22.]

On May 30, 2012, Judge

Puglisi issued his Order Denying Second Motion for Appointment of
Counsel (the “May 30, 2012 Order”).

[Dkt. no. 28.]

STANDARD
Pursuant to Rule LR74.1, any party may appeal from a
magistrate judge’s order determining a non-dispositive pretrial
matter or, if a reconsideration order has issued, the magistrate
judge’s reconsideration order on such a matter.

The district

judge shall consider the appeal and shall set aside any portion
of the magistrate judge’s order found to be clearly erroneous or
contrary to law.

See Local Rule LR74.1; see also 28 U.S.C.

1

As of the date of this order, none of the Defendants have
made an appearance in this case.
2

§ 626(b)(1)(A); Fed. R. Civ. P. 72(a).

The district judge may

also reconsider sua sponte any matter determined by a magistrate
judge.

See Local Rule LR74.1.
“The clearly erroneous standard applies to the

magistrate judge’s factual findings while the contrary to law
standard applies to the magistrate judge’s legal conclusions,
which are reviewed de novo.”

Columbia Pictures, Inc. v. Bunnell,

245 F.R.D. 443, 446 (C.D. Cal. 2007).

Under the “clearly

erroneous” standard, the magistrate judge’s ruling must be
accepted unless, after reviewing the entire record, this Court is
“left with the definite and firm conviction that a mistake has
been committed.”

United States v. Silverman, 861 F.2d 571,

576-77 (9th Cir. 1988) (citing United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).

The district judge may not simply

substitute his or her judgment for that of the magistrate judge.
See Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 241
(9th Cir. 1991).

“‘A decision is contrary to law if it applies

an incorrect legal standard or fails to consider an element of
the applicable standard.’”

Na Pali Haweo Cmty. Ass’n v. Grande,

252 F.R.D. 672, 674 (D. Hawai‘i 2008).
DISCUSSION
Tierney argues that, although this Court “ordered [him]
to file a motion for appointment of counsel[,]. . . U.S.

3

Magistrate Judge Richard L. Puglisi has denied [his motion].”2
[Appeal at 1.]
Where a plaintiff has been granted leave to proceed in
forma pauperis, the district court, in its sound discretion, may
appoint counsel to represent the plaintiff.

See 28 U.S.C.

§ 1915(e)(1); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004).

A court, however, should only appoint counsel

“in exceptional circumstances.”

Agyeman, 390 F.3d at 1103

(citation and quotation marks omitted).

“A finding of the

exceptional circumstances of the plaintiff seeking assistance
requires at least an evaluation of the likelihood of the
plaintiff’s success on the merits and an evaluation of the
plaintiff’s ability to articulate his claims in light of the
complexity of the legal issues involved.”
quotation marks omitted).

Id. (citations and

Although neither factor is

controlling, the court must view both together before ruling upon
a motion for the appointment of counsel.

See Wilborn v.

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

2

As a preliminary matter, the Court notes that it did not
“order” Tierney to file a motion for appointment of counsel. In
its May 15, 2012 Order, this Court stated: “Until the Complaint
is served and Defendant[s] or his/her attorney files a notice of
appearance, Plaintiff SHALL NOT FILE MOTIONS OR OTHER DOCUMENTS
with the court, other than a motion for appointment of counsel.”
[May 15, 2012 Order at 15.] Tierney misunderstands or
misconstrues this Court’s order that he may not file any motion,
except one seeking appointment of counsel, but the Court by no
means “ordered” him to file a motion for appointment of counsel.
4

The Court does not find any error with the magistrate
judge’s decision that warrants reversal.

As Judge Puglisi

correctly noted in his order, there is no presumptive right to
appointed counsel in this case.

[May 30, 2012 Order at 1 (citing

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27 (1981)).]
He found that, because Tierney “can read, write, and express his
claims” and “has also filed fourteen actions, including this one,
in this court within the past year,” Tierney “is able to access
the courts and navigate his proceedings pro se.”

[Id. at 2.]

He

noted that the disabilities Tierney complained of (lack of
writing material, postage, envelopes, and access to the law
library) have not impaired the prosecution of this case, as
Tierney has complied with filling out and returning the requisite
service forms.

[Id.]

Judge Puglisi determined that there were no
“exceptional circumstances” necessitating appointment of counsel,
because Tierney has demonstrated his “ability to articulate his
claims in light of the complexity of the legal issues
involved . . . .”

See Agyeman, 390 F.3d at 1103.

finds no error in this conclusion.

The Court

Moreover, as to “the

likelihood of the plaintiff’s success on the merits,” id., this
Court expressed doubts in its May 15, 2012 Order over the
plausibility of Tierney’s claim that the other Defendants ordered
Pattioay to attack Tierney.

[May 15, 2012 Order at 7.]

5

Accordingly, the Court CONCLUDES that the May 30, 2012 Order was
neither clearly erroneous nor contrary to law and DENIES
Tierney’s Appeal.
CONCLUSION
On the basis of the foregoing, Tierney’s Objections to
U.S. Magistrate Judge Richard L. Puglisi Denying Motion for
Appointment of Counsel, filed June 5, 2012, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 19, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

MICHAEL C. TIERNEY V. LOIS TORIKAWA, ET AL; CIVIL NO. 12-00056
LEK-RLP; ORDER DENYING MICHAEL C. TIERNEY’S APPEAL OF MAGISTRATE
JUDGE DECISION

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