Eline v. Hart et al

Filing 12

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT DISMISS THE COMPLAINT WITH LEAVE TO AMEND, DENY PLAINTIFF'S MOTION TO APPOINT COUNSEL, AND DENY PLAINTIFFS APPLICATION TO PROCEED WITHOUT PREPAYING FEES (ECF No. 9 ) and DENYING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION (ECF No. 10 ). Signed by JUDGE HELEN GILLMOR on 12/18/2014. ~ Plaintiff's Objections to the Magistrate Jud ge's Findings and Recommendation (ECF No. 10) are DENIED. Plaintiff may file a First Amended Complaint by January 30, 2015. The Amended Complaint must conform to the rulings contained in this Order Adopting the Magistrate Judge's Finding s and Recommendation. Failure to file an Amended Complaint consistent with this Order by January 30, 2015, will result in dismissal of the entire matter. (ecs, )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

RICHARD C. ELINE,

)
)
Plaintiff,
)
)
vs.
)
)
DUSTIN HART; RICHARD VAN LEAR; )
ANTHONY KELLY; JOHN DOE 1-15; )
JANE DOE 1-15,
)
)
Defendants.
)
______________________________ )

CIV. NO. 14-00508 HG-RLP

ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
THAT THE DISTRICT COURT DISMISS THE COMPLAINT WITH LEAVE TO
AMEND, DENY PLAINTIFF’S MOTION TO APPOINT COUNSEL, AND
DENY PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES
(ECF No. 9)
and
DENYING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION (ECF No. 10)

On November 10, 2014, Plaintiff Richard C. Eline,
proceeding pro se, filed a Complaint against Defendants Dustin
Hart, Richard Van Lear, and Anthony Kelly.

(ECF No. 1).

On the same date, Plaintiff filed a MOTION TO APPOINT
COUNSEL.

(ECF No. 2).

On November 17, 2014, Plaintiff filed an APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS.
(ECF No. 6).
On November 19, 2014, the Magistrate Judge issued

FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT DISMISS
THE COMPLAINT WITH LEAVE TO AMEND, DENY PLAINTIFF’S MOTION TO
APPOINT COUNSEL, AND DENY PLAINTIFF’S APPLICATION TO PROCEED
WITHOUT PREPAYING FEES.

(ECF No. 9).

On November 24, 2014, Plaintiff filed OBJECTIONS TO
FINDINGS AND RECOMMENDATIONS.

(ECF No. 10).

STANDARD OF REVIEW

28 U.S.C. § 636(b)(1)(B) permits a district court judge
to designate a magistrate judge to determine matters pending
before the court and to submit a findings and recommendation
to the district court judge.

Any party may object to a

magistrate judge's findings and recommendation, pursuant to
District of Hawaii Local Rule 74.2.
The district court judge shall make a de novo
determination of those portions of the findings and
recommendation to which a party properly objects and may
accept, reject, or modify, in whole or in part, the findings
and recommendation made by the magistrate judge.

28 U.S.C. §

636(b)(1)(c); Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir.
2009).

ANALYSIS

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Plaintiff objects to the Magistrate Judge’s Findings and
Recommendation (ECF No. 9).

Plaintiff disputes the Magistrate

Judge’s finding that he failed to state a claim pursuant to 42
U.S.C. § 1983.

Plaintiff also objects to the Magistrate

Judge’s recommendation to deny his requests for the
appointment of counsel and to proceed without prepayment of
fees.

I.

Dismiss Complaint with Leave to Amend

The reasons stated in the Magistrate Judge’s Findings and
Recommendation as to the dismissal of Plaintiff’s Complaint
with leave to amend are sound.
Plaintiff titled his Complaint: “Civil Rights Lawsuit”.
(ECF No. 1).

The Complaint contains allegations that in

October 2014, Plaintiff was denied access to the computers in
the Heald College library and was later suspended from the
College.

(ECF No. 1).

The Magistrate Judge construed Plaintiff’s Complaint as
attempting to state a claim pursuant to 42 U.S.C. § 1983.

The

Magistrate Judge found that the Complaint did not provide
sufficient allegations to state a claim.

The Magistrate Judge

recommended granting Plaintiff leave to amend his Complaint to
permit him the opportunity to include sufficient allegations

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to state a Section 1983 claim.
In his Objections, Plaintiff states: “Magistrate has
elevated private person(s) to capacity which does not exist
discrimination is the same for govt employee as to private
citizen pretending to be a teacher.”
No. 10).

(Objections at p. 2, ECF

Plaintiff’s objection to the recommendation to

dismiss his Complaint with leave to amend misinterprets the
Magistrate Judge’s findings.
The Magistrate Judge explained in the Findings and
Recommendation that Section 1983 generally applies to
government officials and employees but may apply to a private
person acting under color of state law.

A plaintiff must

allege two elements to state a Section 1983 claim: (1) that a
right secured by the Constitution or laws of the United States
was violated, and (2) that the violation was committed by a
person acting under the color of state law.
487 U.S. 42, 48 (1988).

West v. Atkins,

Neither of the two elements required

to state a Section 1983 claim is alleged in Plaintiff’s
Complaint.
The Findings and Recommendation that the District Court
Dismiss the Complaint with Leave to Amend is ADOPTED.
The finding that Plaintiff’s Complaint does not state a
claim also supports the Magistrate Judge’s recommendation to
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deny Plaintiff’s requests for the appointment of counsel and
to proceed without prepayment of fees.

II.

Appointment of Counsel

The Court may appoint counsel pursuant to 28 U.S.C. §
1915(e)(1) only under “exceptional circumstances.”
Exceptional circumstances requires an evaluation of both the
likelihood of success on the merits and the ability of the
plaintiff to articulate claims pro se given the complexity of
the legal issues involved.

Terrell v. Brewer, 935 F.2d 1015,

1017 (9th Cir. 1991).
The Magistrate Judge properly found that Plaintiff has
not stated a claim, so Plaintiff has not demonstrated a
likelihood of success on the merits.
Plaintiff believes his inability to state a claim
supports his request for the appointment of counsel.
Plaintiff ignores the requirement that he demonstrate a
likelihood of success on the merits in order to establish
extraordinary circumstances that warrant the appointment of
counsel.
Plaintiff’s Objections do not contain any additional
information that would support his request for the appointment
of counsel.

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The Findings and Recommendation that the District Court
Deny Plaintiff’s Motion to Appoint Counsel is ADOPTED.

III.

Proceeding Without Prepayment of Fees

Courts may authorize the commencement of any suit without
prepayment of fees by a person who submits an affidavit that
the person is unable to pay such fees.
1915(a)(1).

28 U.S.C. §

The Court must subject each civil action

commenced pursuant to Section 1915(a) to mandatory screening
and order the dismissal of any claim that it finds “frivolous,
malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune
from such relief.”

28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith,

203 F.3d 1122, 1127 (9th Cir. 2000).
The Magistrate Judge recommended denying Plaintiff’s
request to proceed without prepayment of fees because of the
deficiencies in his Complaint.

The Magistrate Judge

recommended Plaintiff be given leave to file another
Application to Proceed without Prepaying Fees if he files a
First Amended Complaint.
Plaintiff’s failure to state a claim in his Complaint
prohibited the Magistrate Judge from granting his application
to proceed without prepayment of fees.
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Lopez, 203 F.3d at

1127.

Plaintiff has not pointed to any error in the

Magistrate Judge’s findings and recommendation as to the
denial of the application to proceed without prepayment of
fees.
The Findings and Recommendation that the District Court
Deny Plaintiff’s Application to Proceed without Prepayment of
Fees is ADOPTED.
CONCLUSION

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 74.2,
the “Findings and Recommendation that the District Court
Dismiss the Complaint with Leave to Amend, Deny Plaintiff’s
Motion to Appoint Counsel, and Deny Plaintiff’s Application to
Proceed without Prepayment of Fees” (ECF No. 9) is ADOPTED AS
THE OPINION AND ORDER OF THIS COURT.
The Objections do not contain any information that
requires a change in the Findings and Recommendation of the
Magistrate Judge.
Plaintiff’s Objections to the Magistrate Judge’s Findings
and Recommendation (ECF No. 10) are DENIED.
Plaintiff may file a First Amended Complaint by January
30, 2015.

The Amended Complaint must conform to the rulings

contained in this Order Adopting the Magistrate Judge’s

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Findings and Recommendation.

Failure to file an Amended

Complaint consistent with this Order by January 30, 2015, will
result in dismissal of the entire matter.

IT IS SO ORDERED.
DATED: December 18, 2014, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

Richard C. Eline v. Dustin Hart; Richard Van Lear; Anthony
Kelly; John Doe 1-15; Jane Doe 1-15, Civ. No. 14-00508 HG-RLP;
ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
THAT THE DISTRICT COURT DISMISS THE COMPLAINT WITH LEAVE TO
AMEND, DENY PLAINTIFF’S MOTION TO APPOINT COUNSEL, AND DENY
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES (ECF
No. 9) and DENYING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION (ECF No. 10)
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