United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND
DISMISSING CERTAIN DEFENDANTS AND CLAIMS (ECF NOS. 13,
November 16, 2016, Plaintiff Timothy Cleveland
(“Plaintiff”), proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), which provides a remedy
for violation of civil rights by federal actors. (ECF No. 1.)
On March 14, 2017, Plaintiff filed a second amended complaint
which was referred to a United States magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
March 27, 2017, the magistrate judge filed a findings and
recommendations. The findings and recommendations recommended
dismissing certain claims and defendants from this action for
Plaintiff's failure to state a claim. The findings and
recommendations was served on Plaintiff and contained notice
that any objections to the findings and recommendations were
to be filed within thirty (30) days from the date of service.
On April 17, 2017, Plaintiff filed objections to the findings
objections, Plaintiff requests appointment of counsel.
Generally, a plaintiff in a civil action does not have a
constitutional right to appointed counsel. Hernandez v.
Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989). The court
has discretion to appoint an attorney to represent “any
person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). Court appointment of counsel pursuant to 28
U.S.C. § 1915(e)(1) requires exceptional circumstances.
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991). “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.' Neither of these factors is dispositive and
both must be viewed together before reaching a
decision.” Terrell, 935 F.2d at 1017 (quoting
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir.1986)); Johnson v. U.S. Dep't of Treasury,
939 F.2d 820, 823 (9th Cir. 1991). (considering
plaintiff's financial resources, efforts the plaintiff
has made to obtain counsel, and the merits of plaintiff's
claims in determining whether to appoint counsel.)
has demonstrated that he does not have the financial
resources to obtain counsel as he is proceeding in forma
pauperis in this action.
has not demonstrated that he has taken reasonable steps to
obtain counsel. While Plaintiff states that he made
reasonable attempts to acquire counsel through the attorney
search network of the California Bar Association, his
conclusory allegation that no lawyers have experience
applicable to the issues in this case does not demonstrate an
actual attempt to obtain counsel. Plaintiff appears to have
contacted law schools which did not respond to his requests,
and a firm in Arkansas offered limited assistance if the case
moves forward. However, Plaintiff has not shown that
reasonable efforts were made to obtain representation in the
geographic area in which he resides, or that any attorney has
refused to accept his case.
action, the magistrate judge found that Plaintiff had stated
a claim for declaratory relief against Defendant Hunton on
his Administrative Procedure Act claim regarding the decision
to accelerate his 2014 loan. A finding that Plaintiff has
stated a claim does not demonstrate that Plaintiff is likely
to prevail on the merits of his claim. At screening, Rule 8
of the Federal Rules of Civil Procedure requires “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The magistrate judge's finding that some of the
complaint's causes of action comply with Rule 8(a) is
merely a judicial finding that Plaintiff has set forth
sufficient factual allegations, if accepted as true, to state
a claim that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. at 678 (2009). Such a finding is far
different than a finding that there is reasonable cause to
believe that the plaintiff will win on the merits of his
claim that the Farm Services Agency improperly accelerated
his 2014 loan. At this stage of the proceedings, the Court
cannot conclude that Plaintiff is likely to prevail on the
merits of his claim.
the Court finds that Plaintiff appears quite capable of
pursuing this action pro se. Plaintiff's complaint
demonstrates his ability to conduct legal research and
articulate his claims. The Court does not find that
exceptional circumstances exist to appoint counsel in this
upon a review of the factors to be considered,
Plaintiff's motion for appointment of counsel is denied.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, the Court finds the findings and recommendations to be
supported by the record and by proper analysis.
Plaintiff's objections provide no reason for departure.
IT IS HEREBY ORDERED that:
Plaintiff's motion for appointment of counsel is DENIED;
findings and recommendations, filed March 13, 2017, is
ADOPTED IN FULL;
action shall proceed against Defendant Hunton in his official
capacity for declaratory relief on Plaintiff's
Administrative Procedures Act claim ...