Johnston v. Johnson

Filing 15

ORDER: Magistrate Judge Russo's Findings and Recommendation 7 is adopted in full. Plaintiff's Motion for Appointment of Counsel 14 is denied. This matter is dismissed with prejudice. Signed on 1/18/2017 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAMES FRANCIS JOHNSTON,
Case No. 6:16-cv-01894-JR
Plaintiff,

ORDER

v.
DR. SCOTT HOWARD JOHNSON,

Defendants.
_____________________________
MCSHANE, Judge:
Magistrate Judge Jolie A. Russo filed a Findings and Recommendation, ECF No. 7,
recommending dismissal of this action for failure to state a claim. The matter is now before me.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Johnston, proceeding pro se, filed objections
to the Findings and Recommendation. Accordingly, I have reviewed this case de novo. See 28
U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). I find no error and adopt the Findings and Recommendations.

1 –ORDER

I find no allegations sufficient to raise a federal question. This appears to be a claim for
medical malpractice. In his objections, Johnston included descriptions of his contacts with the
Eugene Police Department and his landlords. None of those individuals are parties to this case.
As noted in the Findings and Recommendation, simply because Johnston’s visits with Dr.
Johnson were covered in part by Medicare does not make Dr. Johnson a government actor under
section 1983.
Along with his objections, Johnston moved for appointment of counsel. ECF No. 14.
There is no general right to counsel in civil cases. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009). In "exceptional circumstances," the court may appoint counsel to represent an indigent
party in a civil action. 28 U.S.C. § 1915(e)(1); Palmer, 560 F.3d at970 (internal citations
omitted). In considering whether to appoint counsel, the court considers "the likelihood of
success on the merits as well as the ability of the petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved." Id. (internal citations omitted). Johnston is able
to articulate his claims. Those claims, however, involve no federal questions and are barred by
the statute of limitations. Johnston’s motion for appointment of counsel is DENIED.
Magistrate Judge Russo’s Findings and Recommendation, ECF No. 7, is ADOPTED in
full. This matter is dismissed with prejudice.
IT IS SO ORDERED.
DATED this 18th day of January, 2017.

/s/ Michael McShane
Michael McShane
United States District Judge

2 –ORDER