Miller v. State of Arizona Department of Corrections et al

Filing 12

ORDER Accepting Report and Recommendation. IT IS HEREBY ORDERED that plaintiffs objections 8 , 11 are OVERRULED. IT IS FURTHER ORDERED that Magistrate Judge Hoffmans Orders 5 , 10 are AFFIRMED. Plaintiffs complaint 6 is dismissed without prejudice, with leave to amend. Plaintiff has 30 days from entry of this Order in which to file an amended complaint. Signed by Judge Andrew P. Gordon on 2/27/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEVEN MILLER,

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Case No. 2:14-cv-00628-APG-CWH
Plaintiff,

v.
STATE OF ARIZONA DEPARTMENT OF
CORRECTIONS, et al.,

Order Accepting Report and
Recommendation
(Dkt. ##8,11)

Defendant.

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Magistrate Judge Hoffman entered his Order (Dkt. #5) dismissing plaintiff Steven Miller’s

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complaint for failure to plead sufficient facts to state claims upon which relief can be granted.

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Miller filed a “letter of appeal.” (Dkt. #8.) Magistrate Judge Hoffman entered another Order

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(Dkt. #10) denying Miller’s repeated request for appointment of counsel. Miller filed another

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letter (Dkt. #11) again requesting appointment of counsel. I treat Miller’s letters (Dkt. ## 8, 11)

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as objections to Magistrate Judge Hoffman’s Orders (Dkt. ## 5, 10).

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Neither of Miller’s objections addresses the substance of Magistrate Judge Hoffman’s

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Order dismissing the complaint. Instead, both letters request appointment of counsel. Magistrate

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Judge Hoffman’s Order dismissing the complaint (Dkt. #5) is not clearly erroneous or contrary to

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law; rather, the Order sets forth the proper legal analysis and factual basis for his decision. As

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such, it is affirmed. Plaintiff may file an amended complaint if he has sufficient facts to support

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his claims. Magistrate Judge Hoffman’s Order details the deficiencies in the current complaint.

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I also agree with Magistrate Judge Hoffman that there is insufficient evidence of

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exceptional circumstances to warrant appointment of counsel. (Dkt. #10.) This appears to be a

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simple discrimination case, not an exceptional one, and plaintiff appears able to articulate his

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claims sufficiently. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Plaintiff is free

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to seek pro bono counsel from those local organizations that provide such representation, or to

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contact the Nevada State Bar Association to attempt to obtain referrals to such counsel. But he is

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not entitled to appointment of counsel by this court.

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IT IS HEREBY ORDERED that plaintiff’s objections (Dkt. ##8, 11) are OVERRULED.

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IT IS FURTHER ORDERED that Magistrate Judge Hoffman’s Orders (Dkt. #5, 10) are

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AFFIRMED. Plaintiff’s complaint (Dkt. #6) is dismissed without prejudice, with leave to

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amend.

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IT IS FURTHER ORDERED that plaintiff has 30 days from entry of this Order in which

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to file an amended complaint. Failure to file an amended complaint within that time will result in

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this action being dismissed.

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Dated: February 27, 2014.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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