Tierney v. Torikawa et al

Filing 67

ORDER DENYING PLAINTIFF'S OBJECTIONS TO MAGISTRATE'S ORDER DENYING APPOINTMENT OF COUNSEL. Signed by JUDGE LESLIE E. KOBAYASHI on 1/18/2013. [Plaintiff's Objections: doc. no. 60 . Order Denying Appointment of Counsel: doc . no. 57 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications 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.
____________________________

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CIVIL NO. 12-00056 LEK-RLP

ORDER DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE’S ORDER
DENYING APPOINTMENT OF COUNSEL
On October 16, 2012, the magistrate judge issued his
Order Denying Motion for Appointment of Counsel (“Order”).
Plaintiff Michael C. Tierney (“Plaintiff”) filed his Objections
to Magistrate’s Order Denying Appointment of Counsel
(“Objections”) on October 29, 2012.
memorandum in opposition.

Defendants did not file a

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 Objections and the relevant legal authority,
the Objections are HEREBY DENIED for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and legal history of this case, and the Court will only discuss
the events that are relevant to the review of the Order and the

Objections.
On October 16, 2012, the magistrate judge issued his
Order denying Plaintiff’s Motion for Appointment of Counsel,
finding that Plaintiff failed to present exceptional
circumstances justifying the appointment of counsel.

In his

Objections, Plaintiff argues that he has suffered “severe
concussions and head injuries,” and is “suffering long-term
consequences of brain trauma,” and being treated for cancer.
Plaintiff argues that such circumstances warrant the appointment
of counsel.
STANDARD
Pursuant to 28 U.S.C. § 636(b)(1)(A), a
district judge may designate a magistrate judge to
hear and decide a pretrial matter pending before
the court. The decision of the magistrate judge
on non-dispositive matters is final. Bhan v. NME
Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991).
However, a district judge may reconsider a
magistrate’s order on these non-dispositive
pretrial matters and set aside that order, or any
portion thereof, if it is “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a); 28
U.S.C. § 636(b)(1)(A); LR 74.1; see Rivera v.
NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004);
see also Osband v. Woodford, 290 F.3d 1036, 1041
(9th Cir. 2002).
. . . .
“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. Haw. 2008); see Hunt v. Nat’l
Broadcasting Co., 872 F.2d 289, 292 (9th Cir.
1989) (noting that such failures constitute abuse
of discretion).
2

Hasegawa v. Hawaii, CV No. 10–00745 DAE–BMK, 2011 WL 6258831, at
*1-2 (D. Hawai`i Dec. 14, 2011).
DISCUSSION
At the outset, the Court notes that the standard
applicable to an appeal of a magistrate judge’s non-dispositive
order is highly deferential.

In the present case, Plaintiff has

failed to establish that the magistrate judge’s Order was clearly
erroneous or contrary to law.

The magistrate judge applied the

correct legal standard and did not otherwise abuse his discretion
in finding that Plaintiff’s medical issues did not constitute
“exceptional circumstances” such that appointment of counsel is
required.

See Agyeman v. Corrections Corp. of America, 390 F.3d

1101, 1103 (9th Cir. 2004) (“The decision to appoint sound
counsel is within ‘the sound discretion of the trial court and is
granted only in exceptional circumstances.’”).

While this Court

has much sympathy for Plaintiff’s unfortunate health issues,
Plaintiff’s statements as to his health in the instant Objections
do not assert or establish that the magistrate judge’s finding
was clearly in error.

Because Plaintiff has failed to

demonstrate that the magistrate judge’s Order was clearly
erroneous or contrary to law, the Court DENIES Plaintiff’s
Objections.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Objections
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to Magistrate’s Order Denying Appointment of Counsel, filed
October 29, 2012, are HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 18, 2013.

/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 PLAINTIFF’S OBJECTIONS TO MAGISTRATE’S
ORDER DENYING APPOINTMENT OF COUNSEL

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