United States District Court, E.D. California
JOHN D. SCHEMA, Plaintiff,
UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff John Schema is proceeding pro se and, therefore, this matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
The matter came before the court on November 14, 2014, for hearing of defendants' motion to dismiss for lack of subject matter jurisdiction. Attorney Gregory Broderick appeared on behalf of the defendants. There was no appearance by plaintiff.
Thereafter, this matter came before the court on January 9, 2015, for the hearing of plaintiff's motion to appoint counsel. Attorney Gregory Broderick appeared on behalf of the defendants at that time and plaintiff appeared on his own behalf.
For the reasons set forth below, plaintiff's motion for the appointment of counsel will be denied and the undersigned will recommend that defendants' motion to dismiss be granted.
Plaintiff commenced this action on March 7, 2014, by filing a complaint and a motion to proceed in forma pauperis. (Dkt. Nos. 1 & 2.) On March 14, 2014, the court granted plaintiff's motion to proceed in forma pauperis and ordered service of plaintiff's complaint. (Dkt. No. 3.) On May 27, 2014, defendants the United States; the United States Forest Service; Tom Tidwell, Chief, United States Forest Service; Randy Moore, Regional Forester for the Pacific Southwest Region; Tom Quinn, Forest Supervisor, Tahoe National Forest; Jean M. Masquelier, former District Rangers of the Yuba River Ranger District; Genice Froehlich; and Dave Brown, filed a motion to dismiss. (Dkt. No. 9.) On July 30, 2014, the previously assigned Magistrate Judge issued findings and recommendations recommending that this action be dismissed due to lack of subject matter jurisdiction. (Dkt. No. 23.)
On September 4, 2014, the assigned District Judge adopted those findings and recommendations as to plaintiff's inverse condemnation claim and dismissed that claim without prejudice to a filing by plaintiff before the United States Court of Federal Claims. (Dkt. No. 31 at 8-9.) However, the assigned District Judge also found that "although inartfully pled, " plaintiff's complaint also set forth a claim for violation of the Quiet Title Act, ("QTA"), which was not addressed by the July 30, 2014 findings and recommendations. (Id. at 5.) The assigned District Judge also found at that time that this action was related within the meaning of Local Rule 123(a) to a criminal action pending before the court, United States v. John D. Schema, 2:13-mj-0087-DAD. (Id. at 7.) Accordingly, the assigned District Judge reassigned this civil action from the previously assigned Magistrate Judge to the undersigned. (Id. at 9.)
On October 16, 2014, defendants filed a motion to dismiss plaintiff's QTA claim. (Dkt. No. 40.) On November 6, 2014, plaintiff filed a motion seeking the appointment of counsel. (Dkt. No. 43.) On November 7, 2014, defendants filed a reply in support of their motion to dismiss. (Dkt. No. 44.) On November 25, 2014, plaintiff filed an untimely response to defendants' motion to dismiss. (Dkt. No. 46.) Defendants then filed a reply to plaintiff's untimely response on November 16, 2014. (Dkt. No. 47.) Plaintiff filed a surreply to defendants' reply on December 5, 2014. (Dkt. No. 48.) Defendants filed yet a further response to plaintiff's surreply on December 15, 2014. (Dkt. No. 49.) On December 23, 2014, defendants filed an opposition to plaintiff's motion for the appointment of counsel. (Dkt. No. 54.) Finally, on January 8, 2015, plaintiff filed a document styled as his "continued opposition to defendant's motion to dismiss." (Dkt. No. 54.)
I. Motion to Appointment Counsel
The Sixth Amendment guarantees a defendant the right to have counsel present at all "critical" stages of a criminal proceeding. U.S. CONST. AMEND. VI; Gideon v. Wainwright, 372 U.S. 335, 342 (1963). "But the Sixth Amendment does not govern civil cases." Turner v. Rogers, ___ U.S. ___, ___, 131 S.Ct. 2507, 2516 (2011).
However, a court may under "exceptional circumstances" appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). When determining whether exceptional circumstances exist, a court must consider 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. Neither of these considerations is dispositive and instead must be viewed together.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citations and quotations omitted). See also Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) ("district court must determine whether a) there is a likelihood of success on the merits; and b) the prisoner is unable to articulate his claims in light of the complexity of the legal issues ...