Wilson v. Custer County, Idaho et al

Filing 13

SUCCESSIVE REVIEW ORDER. The Amended Complaint fails to state a claim upon which relief may be granted. Therefore, for the reasons stated in this Order and theInitial Review Order (Dkt. 6 ), this entire case is DISMISSED withoutprejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1). Signed by Judge B Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

Case 1:22-cv-00098-BLW Document 13 Filed 01/18/23 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK CHARLES WILSON,
Case No. 1:22-cv-00098-BLW
Plaintiff,
SUCCESSIVE REVIEW ORDER
BY SCREENING JUDGE

v.
CUSTER COUNTY, IDAHO;
CUSTER COUNTY PUBLIC
DEFENDER’S OFFICE and
EMPLOYEES; IDAHO STATE
PUBLIC DEFENSE COMMISSION
and EMPLOYEES; and UNKNOWN
JOHN AND JANE DOES 1
THROUGH 50,
Defendants.

Plaintiff Mark Charles Wilson is a prisoner proceeding pro se and in forma
pauperis in this civil rights action. The Court previously reviewed Plaintiff’s
complaint, pursuant to 28 U.S.C. §§ 1915 and 1915A, and determined that
Plaintiff’s claims appeared barred by the doctrine announced in Heck v. Humphrey,
512 U.S. 477 (1994). Initial Review Order, Dkt. 6, at 5–6. The Court allowed
Plaintiff an opportunity to amend.
Plaintiff has now filed an Amended Complaint. Dkt. 12. The Court retains
its screening authority pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

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Having reviewed the Amended Complaint, the Court concludes that Plaintiff
has failed to remedy the deficiencies in the initial Complaint, and the Court will
dismiss this case pursuant to 28 U.S.C. §§ 1915 and 1915A.
1.

Request for Appointment of Counsel
Plaintiff seeks appointment of counsel. Am. Compl. at 5. Unlike criminal

defendants, prisoners and indigents in civil actions have no constitutional right to
counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services,
452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is
within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986).
In civil cases, counsel should be appointed only in “exceptional
circumstances.” Id. To determine whether exceptional circumstances exist, the
court should evaluate two factors: (1) the likelihood of success on the merits of the
case, and (2) the ability of the plaintiff to articulate the claims pro se in light of the
complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id.
Further, an attorney cannot be forced to represent an indigent litigant in a civil
case—rather, the attorney can only be “appointed” if he or she voluntarily accepts
the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S.
296, 298 (1989) (holding that the appointment of counsel provision in § 1915,

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formerly found in subsection (d), does not “authorize[] a federal court to require an
unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v.
Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017)
(“[The Court] does not have inherent authority to compel an attorney to represent
Plaintiffs pro bono.”).
The legal issues in this matter are not complex, and Plaintiff has been able to
file documents with the Court and protect Plaintiff’s interests to date. In addition,
as explained below, the Amended Complaint fails to state a federal claim upon
which relief may be granted; therefore, Plaintiff does not have a likelihood of
success on the merits of those claims. Accordingly, the Court will deny Plaintiff’s
request for appointment of counsel.
2.

Screening Requirement and Pleading Standards
As explained in the Initial Review Order, the Court must dismiss a prisoner

or in forma pauperis complaint—or any portion thereof—that states a frivolous or
malicious claim, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(d)(2) & 1915A(b). A complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A complaint fails to state a claim for relief under Rule 8 if the factual assertions in
the complaint, taken as true, are insufficient for the reviewing court plausibly “to

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draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3.

Discussion
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To

state a plausible civil rights claim, a plaintiff must allege a violation of rights
protected by the Constitution or created by federal statute proximately caused by
conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d
1418, 1420 (9th Cir. 1991).
Plaintiff has failed to establish that his claims are permissible at this time. If
Plaintiff were to succeed on those claims, which assert that Plaintiff received
ineffective assistance of counsel in a criminal case, that decision would necessarily
imply the invalidity of his conviction. Heck, 512 U.S. at 487. Plaintiff has not
alleged that his conviction has been declared invalid or otherwise called into
question. Therefore, the Amended Complaint is subject to dismissal under Heck v.
Humphrey.
ORDER
IT IS ORDERED:
1.

Plaintiff’s request for appointment of counsel (contained in the
Amended Complaint) is DENIED.

2.

Plaintiff’s Motion to Leave to File an Amended Complaint (Dkt. 11)

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is GRANTED IN PART, to the extent that the Court has reviewed the
Amended Complaint.
3.

The Amended Complaint fails to state a claim upon which relief may
be granted. Therefore, for the reasons stated in this Order and the
Initial Review Order (Dkt. 6), this entire case is DISMISSED without
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1).

DATED: January 18, 2023

_________________________
B. Lynn Winmill
U.S. District Court Judge

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