Siemion et al v. Stewert et al

Filing 65

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, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION FILED JUl 242012 :TRICK E. DUFFY CLERK Deputy Clerk ) U.S. DISTRICT COURT BILLINGS DIVISION ) ) Cause No. CV-11-120-BLG-RFC Plaintiff, ) ) vs. ) ORDER ADOPTING ) VIANNA STEWERT, DEBBIE SCOTT, ) FINDINGS AND ) CLARA HUGS, TY TEN BEAR, RECOMMENDATION OF PATRICIA BUGAS-HARRIS, MARTIN ) UNITED STATES ) ANSETH, WILLIAM HE DOES IT, MAGISTRATE JUDGE 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 ) PARTIES UNKNOWN" ) ) Defendant. ) NEL VETTE SIEMION, DBA/White Buffalo Ranch, -------------------) 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. 1 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). A. 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 See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn on other grounds, 154 F .3d 952, 962 (9th Cir. 1998).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). 2 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. B. 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. 3 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. DATED the . day of July, 2012. \ RICHARD F. CEBULL UNITED STATES DISTRICT JUDGE 4

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