Ayers v. Richard et al

Filing 223

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 210 Report and Recommendations. (TG; cc mailed to petitioner) (Main Document 223 replaced on 10/28/2010) (TG).

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA LENIER AYERS, Petitioner, v. HENRI RICHARDS, et al., Respondents. Case No. C08-5390BHS ORDER ADOPTING REPORT AND RECOMMENDATION

This matter comes before the Court on the Report and Recommendation of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 210). The Court has considered the Report and Recommendation, Petitioner's ("Ayers") objections (appellate brief), and the remaining record, and hereby adopts the Report and Recommendation. I. PROCEDURAL HISTORY AND DISCUSSION This matter arises out of multiple 42 U.S.C. § 1983 claims by Ayers, against multiple defendants ("Respondents") who are employees of the Special Commitment Center (SCC) where Ayers is confined. Dkt. 16. On August 7, 2008, Ayers filed his complaint against Respondents. Id. Since filing his complaint, Ayers has requested assistance of counsel on four separate occasions (Dkts. 29, 90, 97, 137), which have been denied by Magistrate Judge Strombom (Dkt. 56, 100, 159). On October 30, 2009, Respondents moved the Court for summary judgment of all Ayers's remaining claims against them. Dkt. 175. Magistrate Judge Strombom issued the instant Report and Recommendation on August 3, 2010, recommending summary judgment in favor of Respondents. Dkt. 210. Ayers did not file any objections with this Court, but instead appealed Magistrate Judge Strombom's recommendation to the Ninth Circuit (Dkt.

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213), which was subsequently dismissed for lack of jurisdiction based on Ayers's failure to comply with proper procedure (Dkt. 218). The Ninth Circuit issued its mandate on October 6, 2010. Dkt. 222. Because this Court construes a pro se litigant's pleadings liberally, the Court has deemed Ayers's appellate brief as an objection to the Report and Recommendation.1 In his brief, Ayers makes numerous objections to Magistrate Judge Strombom's recommendation; however, each objection pertains to Ayers's disagreement with Magistrate Judge Strombom's decision to deny Ayers assistance of counsel on three prior occasions. See Dkt. 213.2 While Ayers's objection to the Report and Recommendation relate to Magistrate Judge Strombom's previous orders denying him assistance of counsel, those orders are not at issue. This Court has reviewed those orders and agrees with Magistrate Judge Strombom's prior decisions to deny Ayres assistance of counsel in this case. Magistrate Judge Strombom denied Ayers's motions for assistance of counsel in three3 separate orders, stating that Ayers has failed to present any exceptional circumstance that warrants the appointment of counsel. See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998) (for "exceptional circumstances," a district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C.§ 1915(d)). In Magistrate Judge Strombom's third order denying assistance of counsel, she warns Ayers of possible sanctions if he continues to move the Court for assistance of counsel without addressing the proper legal Ayers filed an objection directed to the Ninth Circuit requesting that the court remand the case to the district court. See Dkt. 219.
1

Even though the Court is considering Ayers's appellate brief the same as if it was an objection, the Court did not request briefing from the Respondents because the Court is fully adopting the Magistrate Judge's Report and Recommendation and ordering summary judgment in favor of Respondents.
2

Magistrate Judge Strombom addresses the second (Dkt. 90) and third (Dkt. 97) motions for assistance of counsel in one order. See Dkt. 100.
3

ORDER ­ 2

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standard for the Court's consideration. Dkt. 159. In his objection, Ayers fails to bring forward any new evidence of an "exceptional circumstance" that would warrant the appointment of counsel; nor does Ayers address the proper legal standard for the Court to consider a motion for assistance of counsel. Ayers also fails to properly assert any reason why, other than denying him assistance of counsel, the Report and Recommendation should not be adopted. Magistrate Judge Strombom has, on three occasions, properly explained to Ayers why he has been denied assistance of counsel. Any further explanation by this Court is unnecessary. Because Ayers makes no other objections and because the Court agrees with Magistrate Judge Strombom's recommendation, the court fully adopts the Report and Recommendation. III. CONCLUSION Therefore, it is hereby ORDERED that the Court ADOPTS the Report and Recommendation and GRANTS summary judgment dismissing Ayres's claims with prejudice, except that any claim Ayres may have regarding his involuntary civil commitment is dismissed without prejudice. DATED this 28th day of October, 2010.

A

BENJAMIN H. SETTLE United States District Judge

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