Martinez v. Mabus et al

Filing 16

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION, AS MODIFIED (ECF NO. 14 ) - Signed by JUDGE HELEN GILLMOR on 10/14/2016. (emt, )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). Gary J. Martinez served by first class mail at the address of record on October 14, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
RAYMOND MABUS, Secretary of
the Navy; and Commander JAMIE )
K. KALOWSKY, Captain of the
)
Pearl Harbor Navy Shipyard,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 16-00475 HG-RLP

GARY J. MARTINEZ,

ORDER ADOPTING THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION, AS MODIFIED (ECF NO. 14)
Plaintiff Gary J. Martinez has filed a lawsuit against
Raymond Mabus, Secretary of the United States Navy, and Captain
Jamie K. Kalowsky, Commander of the Pearl Harbor Naval Shipyard.
Plaintiff, a 60 year-old Hispanic and American Indian male,
alleges that Defendants unlawfully discriminated against him on
account of his race, color, national origin, age, and disability
in violation of federal law.
This matter comes before the Court pursuant to the
Magistrate Judge’s Findings and Recommendation to Deny
Plaintiff’s Request for Appointment of Counsel.
The Findings and Recommendation (ECF No. 14) are ADOPTED as
the opinion and order of this Court, AS MODIFIED.
STANDARD OF REVIEW
A district court reviews those portions of a magistrate
judge’s findings and recommendation to which a party objects de
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novo.

28 U.S.C. § 636(b)(1).

The district court may accept

unobjected portions of the findings and recommendation if the
court is satisfied that there is no clear error on the face of
the record.

Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw.

2003); Abordo v. State of Haw., 938 F.Supp. 656, 658 (D. Haw.
1996).
ANALYSIS
Plaintiff Gary J. Martinez (“Plaintiff”) has filed, with the
assistance of his wife, an Objection to the Magistrate Judge’s
Findings and Recommendation to deny Plaintiff’s request for
appointment of counsel.

(ECF No. 15).

I. The Objection is Untimely
Pro se litigants must abide by all court orders, the Local
Rules, the Federal Rules of Civil Procedure, and other applicable
rules and statutes.

LR 83.13; Briones v. Riviera Hotel & Casino,

116 F.3d 379, 382 (9th Cir. 1997) (per curiam). Federal Rule of
Civil Procedure 72 provides that objections to findings and
recommendations must be filed within 14 days of being served with
a copy.

Fed. R. Civ. P. 72(b)(2).

The Magistrate Judge’s Findings and Recommendation was
served on September 16, 2016.

The deadline for Plaintiff to file

an Objection to the Findings and Recommendation was September 30,
2016.

Plaintiff filed his Objection on October 5, 2016, five

days after the September 30, 2016 deadline.
Objection is untimely.

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Plaintiff’s

Plaintiff appears to have been previously unaware of the
necessity of complying with the Court’s rules.

The Court will

consider his untimely objections.
II. The Magistrate Judge’s Findings and Recommendation is Adopted
A district court has discretion to appoint an attorney for
pro se litigants in civil cases.

28 U.S.C. § 1915(e)(1).

is no constitutional right to appointed counsel.

There

Ivey v. Bd. of

Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).
The Ninth Circuit Court of Appeals has indicated that the
appointment of counsel in civil matters “is limited . . . to
cases presenting exceptional circumstances.”

Theede v. Veterans

Admin., 992 F.2d 1220, *1 (9th Cir. 1993) (citation omitted)
(unpublished).
The Magistrate Judge found that (1) Plaintiff has limited
financial resources; (2) Plaintiff contacted only one attorney
prior to requesting appointed counsel; (3) the merits of
Plaintiff’s claim neither favor nor disfavor appointment of
counsel; and (4) Plaintiff has shown the ability to articulate
his claims pro se.
Plaintiff’s objection to the recommendation to deny
appointment of counsel is that he is disabled and “not medically
capable to challenge the Defendants in Court.”
1, ECF No. 15).
has merit.

(Pla. Obj. at p.

In addition, Plaintiff states that his Complaint

(Id. at pp. 1-3).

Plaintiff’s asserted disability is insufficient reason for

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this Court to appoint counsel.

While Plaintiff has provided a

certificate from his doctor stating that he suffers from anxiety
and Post Traumatic Stress Disorder, (Ex. 1 of Pla. Obj., ECF No.
15-1), he has demonstrated an ability to articulate his claims.
Plaintiff has also demonstrated that he is capable of gathering
documents and other evidence in support of his claims.
Enclosures A-G of Complaint, ECF No. 1).

(See

The Ninth Circuit Court

of Appeals has indicated that absent evidence that a disability
significantly interferes with a plaintiff’s ability to prosecute
his case, the mere fact that a plaintiff has a disability does
not warrant appointment of counsel.

Olson v. Smith, 609 F. App'x

370, 373 (9th Cir. 2015), cert. denied, 136 S.Ct. 1165 (2016);
Signorelli v. Hughes, 363 F. App'x 455, 456 (9th Cir. 2010).
Plaintiff’s objection does not add any new information that
would change the Magistrate Judge’s Findings and Recommendation.
Plaintiff has contacted only one attorney prior to filing the
request for appointment of counsel.

As the Magistrate Judge

indicated, greater efforts to retain counsel must be made.
Plaintiff has not made a reasonable effort, under the
circumstances, to obtain counsel.
III. Plaintiff’s Request for a Hearing
Plaintiff requests a hearing concerning his Objection to the
Findings and Recommendation.
District of Hawaii Local Rule 7.2 provides that objections
to a magistrate judge’s findings and recommendation “shall be

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non-hearing motions to be decided on submissions.” LR 7.2(e).
The Court finds no basis for a hearing in this instance.
Plaintiff’s request for a hearing is DENIED.
IV. Plaintiff’s Request for a Modification of the Procedure as to
Service of Process
Plaintiff requests that the Court modify the procedure for
service of process and provide copies of the relevant documents
necessary for service of process to the United States Marshals
Service.
The United States Marshals Service provided to Plaintiff
specific instructions regarding the necessary document packets he
needs to submit to them, so as to execute service of process
pursuant to Fed. R. Civ. P. 4(i)(2).
Pla. Obj., ECF No. 15-6).

(Memo. to Pla., Ex. 6 of

The Court cannot assist Plaintiff in

complying with the rules of service of process.
Plaintiff’s request to modify the procedure as to service of
process is DENIED.
CONCLUSION
Pursuant to Title 28, United States Code, Section
636(b)(1)(C) and Local Rule 74.2, the Magistrate Judge’s Findings
and Recommendation (ECF No. 14) are ADOPTED as the opinion and
order of this Court, AS MODIFIED: on page 4, paragraph 1, line 4,
replace “Id. at 4.” with “ECF No. 11 at 4.”
Plaintiff’s request for a hearing regarding his Objection to
the Findings and Recommendation is DENIED.

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Plaintiff’s request to modify the service of process
procedure is DENIED.

IT IS SO ORDERED.

DATED:

Honolulu, Hawaii, October 14, 2016.

___________________________________
Helen Gillmor
United States District Judge

Gary J. Martinez v. Raymond Mabus; Jamie K. Kalowsky, 16cv475HGRLP, ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION, AS MODIFIED (ECF NO. 14)
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