Siemion et al v. Stewert et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. Denying 62 Motion for Summary Judgment and denying 63 Motion for Appointment of Counsel Signed by Judge Richard F. Cebull on 7/24/2012. (Copies mailed to N. Siemion and K. Passes) (ACL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
:TRICK E. DUFFY CLERK
U.S. DISTRICT COURT
) Cause No. CV-11-120-BLG-RFC
VIANNA STEWERT, DEBBIE SCOTT,
CLARA HUGS, TY TEN BEAR,
PATRICIA BUGAS-HARRIS, MARTIN )
ANSETH, WILLIAM HE DOES IT,
PHOEBE KNAPP-WARREN, PAUL
WARREN, SAM REDDING, LELAND
WALKING BEAR, KELLY DEE PASSES, )
CEDRIC BLACK EAGLE, LARRY
TOBACCO, WILLIAM F. SNELL III
PRETTY SHIELD, CODY WILHELM,
CHAZ BENDS, VERNON HILL, PETE
MOLINA, DIANE CABRERA, and
NEL VETTE SIEMION, DBA/White
On June 28, 2012, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends Siemion's
motion for appointment of counsel be denied and Sienlion's motion for summary
judgment be denied.
Upon service ofa magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, no
party filed objections to the June 28, 2012 Findings and Recommendation. Failure
to object to a magistrate judge's findings and recommendation waives all
objections to the findings of fact. Turner v. Duncan, 158 F.3d 449,455 (9th Cir.
1999). However, failure to object does not relieve this Court of its burden to
review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886
F.2d 1514, 1518 (9th Cir. 1989).
Motion for Appointment of Counsel
Siemion has been advised that no one, including incarcerated prisoners, has
a constitutional right to be represented by appointed counsel when they bring a
civil lawsuit sinli1ar to the matter at hand. See Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997), withdrawn on other grounds, 154 F .3d 952, 962 (9th Cir.
1998). A judge in a civil action such as this one cannot order a lawyer to represent
a plaintiff - a judge can merely request a lawyer to do so. Mallard v. United
States Dist. Court, 490 U.S. 296,310,109 S.Ct. 1814,104 L.Ed.2d 318 (1989).
Even in a case involving an indigent plaintiff, a judge may request counsel only
under "exceptional circumstances." See 28 U.S.C. § 1915(e)(1) (formerly 28
U.S.C. § 1915(d)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
Siemion is not proceeding as an indigent litigant. Siemion also has not
demonstrated exceptional circumstances that would move a court to request
counsel to represent her in this matter. Siemion has not demonstrated a likelihood
of success on the merits that would cause the Court to believe that requesting
counsel is appropriate.
Siemion's Motion for Summary Judgment
Siemion failed to comply with the Local Rules ("L.R.") in moving for
summary judgment. She did not state in the text of her motion whether Passes has
been contacted concerning the motion or whether he objects to it, in violation of
L.R.7.1(c)(1). She did not file a brief in support of her motion, in violation of
L.R. 7. 1(d)(l)(A), which provides that an opposed motion "must be accompanied
by a brief in support filed at the same time as the motion" and that "failure to
timely file a brief will result in denial of the motion ..... "
Nor did Simeon comply with L.R. 56.1, which requires a movant to file a
Statement of Undisputed Facts setting forth each fact upon which she relies and
citing to specific documents to support the motion. Siemion has failed to
demonstrate the absence of genuine issues of material fact and has not shown that
she is entitled to judgment as a matter of law on any of her claims against Passes.
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
Accordingly, IT IS HEREBY ORDERED that the Siemion's Motion for
Appointment of Counsel [Doc. 63] is DENIED and Siemion's Motion for
Summary Judgment [Doc. 62] is DENIED.
The Clerk o;Fnotify the parties of the entry of this Order.
. day of July, 2012.
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE
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