Floyd v. City of Lakewood et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 18 Objections to Report and Recommendation filed by Thomas Leland Floyd. (TG; cc mailed to plaintiff)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

THOMAS LELAND FLOYD,

9

CASE NO. C11-5068BHS

Plaintiff,

10

ORDER ADOPTING REPORT
AND RECOMMENDATION

v.

11

CITY OF LAKEWOOD, et al.,

12

Defendants.

13
This matter comes before the Court on the Report and Recommendation (“R&R”)

14

15 of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 16),
16 Plaintiff’s (“Floyd”) objections to the R&R (Dkt. 18), and Floyd’s request for assignment
17 of counsel.
I. DISCUSSION

18
19 A.

Objections to the R&R

20

The magistrate judge recommends dismissing Floyd’s case with prejudice under

21 28 U.S.C. §§ 1915(e)(2)(B)9(i)-(ii) and 1915A(b)(1). Dkt. 16 at 2. The magistrate judge
22 also recommends counting the dismissal as a strike pursuant to 28 U.S.C. § 1915(g)

ORDER - 1

1 because Floyd’s complaint is frivolous and fails to state a claim upon which relief can be
2 granted. Id.
3

A complaint is legally frivolous when it lacks an arguable basis in law or fact.

4 Neitzke v.Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 12275 28 (9th Cir. 1984). A court may, therefore, dismiss a claim as frivolous where it is based
6 on an indisputably meritless legal theory or where the factual contentions are clearly
7 baseless. Neitzke, 490 U.S. at 327. A complaint or portion thereof will be dismissed for
8 failure to state a claim upon which relief may be granted if it appears the “[f]actual
9 allegations . . . [fail to] raise a right to relief above the speculative level, on the
10 assumption that all the allegations in the complaint are true.” See Bell Atlantic Corp. v.
11 Twombly, 127 S. Ct. 1955, 1965 (2007) (citations omitted). In other words, failure to
12 present enough facts to state a claim for relief that is plausible on the face of the
13 complaint will subject that complaint to dismissal. Id. at 1974.
14

In this case, Floyd has had three opportunities to file a non-frivolous complaint

15 and to state therein claims for which relief is available. See, e.g., Dkts. 8 (Complaint),
16 Dkt. 10 (order to amend and show cause why the court should not dismiss), Dkt. 12
17 (Amended Complaint), Dkt. 14 (second order to amend or show cause), Dkt. 15 (Second
18 Amended Complaint (“SAC”)). The magistrate judge’s R&R is based on review of the
19 SAC and prior versions of Floyd’s attempts at filing a viable complaint in this case. See
20 Dkt. 16 at 1-12.
21

Floyd filed objections to the R&R. However, the document filed simply reiterates

22 his claims and does not show how the magistrate erred in concluding that he has either

ORDER - 2

1 presented viable claims that cannot be factually supported or alleged facts that cannot
2 support a viable legal theory. The Court has considered the SAC, the R&R, and Floyd’s
3 objections to the R&R and concludes that the magistrate did not err in the analysis or
4 recommendation found within the R&R. See Dkt. 16.
5 B.

Motion for Assistance of Counsel

6

Additionally, because Floyd’s complaint is meritless and he has not shown a lack

7 of ability to articulate his claims, he has not met his burden to obtain assigned counsel in
8 a civil matter.
9

“28 U.S.C. § 1915(d) confers on a district court the discretion to designate counsel

10 to represent an indigent civil litigant.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
11 Cir. 1986) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.1984)). In Wilborn,
12 the Ninth Circuit elaborated on this rule:
13
14
15
16
17
18
19
20
21

The rule that counsel may be designated under section 1915(d) only in
“exceptional circumstances” derives from Weller v. Dickson, 314 F.2d 598,
600 (9th Cir. [1963]), cert. denied, 375 U.S. 845 (1963), which held that “the
privilege of pleading in forma pauperis . . . in civil actions for damages should
be allowed only in exceptional circumstances.” Weller was extended, without
comment, to “appointment of counsel” in United States v. Madden, 352 F.2d
792, 794 (9th Cir. 1965). Madden was then cited for the rule in Alexander v.
Ramsey, 539 F.2d 25, 26 (9th Cir. 1976); United States v. McQuade, 579 F.2d
1180, 1181 (9th Cir. 1978), on appeal after remand, (9th Cir.1981), cert.
denied, 455 U.S. 958 (1983); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.
1980); and Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A
finding of exceptional circumstances requires an evaluation of both “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.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983), quoted in
Kuster, 773 F.2d at 1049. Neither of these factors is dispositive and both must
be viewed together before reaching a decision on request of counsel under
section 1915(d).

22

ORDER - 3

1
2 Wilborn, 789 F.2d at 1331 (emphasis added).
3

Because the Court concludes that Floyd’s complaint lacks merit, his motion for

4 assistance of counsel is moot. Even if the motion were not found moot, Floyd has failed
5 to meet his burden to obtain assistance of counsel because this matter is not complex
6 even if merit were to be found.
7
8

II. ORDER
The Court having considered the R&R, Plaintiff’s objections, and the remaining

9 record, does hereby find and order as follows:
10

(1)

The R&R is ADOPTED;

11

(2)

This action is DISMISSED with prejudice;

12

(3)

This dismissal SHALL be considered a strike pursuant to 28 U.S.C. §

13 1915(g); and
14

(4)

15

Dated this 21st day of September, 2011.

Floyd’s motion for assistance of counsel (Dkt. 20) is DENIED.

A

16
17

BENJAMIN H. SETTLE
United States District Judge

18
19
20
21
22

ORDER - 4