Stewart v. Mr. Berkebile et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 44 in full. Defendant Stewart is DISMISSED. All Fourteenth Amendment claims are also DISMISSED. Signed by Judge Brian Morris on 7/28/2017. Mailed to Stewart. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MR. BERKEBILE, MS. ARNOLD,
MR. SPIEGLE, MR. WEAVER, MIKE
BATISTA, LORAINE WODNIK,
COLLEEN AMBROSE, and MR.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
Plaintiff Laurence Stewart has moved this Court to amend his complaint
(Doc. 39) and to appoint counsel (Doc. 41). United States Magistrate Judge John
Johnston issued and Order and Findings and Recommendations in this matter.
(Doc. 44.) Judge Johnston deemed Stewart’s motion to amend his complaint as
well-taken because Defendants did not respond. Id. at 1. Stewart sought to amend
his complaint to dismiss Defendant Stewart, dismiss all Fourteenth Amendment
claims, and make other minor changes to clarify his allegations. (Doc. 44 at 1-2.)
Judge Johnston granted Stewart’s motion to amend and directed the Clerk of Court
to file his amended complaint. Id. at 3. Judge Johnston further ordered that
Stewart’s motion for counsel was denied. Judge Johnston recommended that the
Court dismiss Defendant Stewart and all Fourteenth Amendment claims. Id. at 4.
Stewart filed an objection that reiterated his arguments about needing
counsel. (Doc. 50). The Court reviews de novo findings and recommendations to
which objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and
recommendations not specifically objected to are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
No constitutional right to be represented by appointed counsel exists when a
plaintiff brings a civil lawsuit under 42 U.S.C. § 1983. 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1520, 1525 (9th Cir. 1997), withdrawn on other grounds, 154 F.3d 952, 962 (9th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 may request a lawyer to represent a plaintiff in a § 1983
lawsuit, but cannot order a lawyer to do so. Mallard v. United States Dist. Court,
490 U.S. 296, 310 (1989).
A judge may only request counsel for an indigent plaintiff under
“exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires
evaluation of two factors. Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986) (citations omitted). The Court must evaluate
the “likelihood of success on the merits and the ability of the petitioner to articulate
his claims pro se in light of the complexity of the legal issues involved.” Id.
Stewart argues that he has not been able to obtain counsel due to his indigent
status. (Doc. 42 at 1-2.) He asserts that he lacks the necessary skills and resources
to litigate this case. Id. He contends that opposing counsel has not made a good
faith effort to discuss his procedure questions. Id. He further argues that he has two
pending cases. Id. He asserts that this case seeks to challenge a Department of
Corrections policy. Id.
The Court agrees with Judge Johnston’s assessment that these arguments do
not rise to the level of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1);
Terrell, 935 F.2d at 1017 (9th Cir. 1991). Stewart has demonstrated his ability to
articulate his claims pro se through his filings with this Court. He has not
adequately shown that he will likely succeed on the merits.
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 44) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendant Stewart is DISMISSED. All
Fourteenth Amendment claims are also DISMISSED.
DATED this 28th day of July, 2017.
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