UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
KELLY LEE KENNEMER, Case No. 3:25-cv-00019-BLW Plaintiff, SUCCESSIVE REVIEW ORDER v. BY SCREENING JUDGE
GREG RAUCH and LAWRENCE MORAN,
Defendants.
Plaintiff Kelly Kennemer is a prisoner proceeding pro se and in forma pauperis in this civil rights action. The Court previously reviewed Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915 and 1915A, determined that it failed to state a claim upon which relief could be granted, and allowed Plaintiff an opportunity to amend. See Initial Review Order, Dkt. 11. Plaintiff has now filed an Amended Complaint. Dkt. 15. The Court retains its screening authority pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Having reviewed the Amended Complaint, the Court concludes that Plaintiff has failed to remedy the deficiencies in the initial complaint, and the Court will dismiss this case pursuant to 28 U.S.C. §§ 1915 and 1915A. 1. Request for Appointment of Counsel Plaintiff seeks appointment of counsel. Am. Compl. at 4. Unlike criminal
defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is
within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the
court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id. Further, an attorney cannot be forced to represent an indigent litigant in a civil case—rather, the attorney can only be “appointed” if she voluntarily accepts the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296,
298 (1989) (holding that the appointment of counsel provision in § 1915, formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v.
Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney to represent Plaintiffs pro bono.”).
The legal issues in this matter are not complex, and Plaintiff has been able to file documents with the Court and protect Plaintiff’s interests to date. In addition, as explained below, the Amended Complaint fails to state a claim upon which
relief may be granted; therefore, Plaintiff does not have a likelihood of success on the merits. Accordingly, the Court will deny Plaintiff’s request for appointment of counsel. 2. Screening Requirement and Pleading Standard
The Court must dismiss a prisoner or in forma pauperis complaint—or any portion thereof—that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §§ 1915(e)(2) & 1915A(b). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken
as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[D]etailed factual allegations” are not required, but a
plaintiff must offer “more than . . . unadorned, the-defendant-unlawfully-harmed- me accusation[s].” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” the complaint has not stated a
claim for relief that is plausible on its face. Id. (internal quotation marks omitted). 3. Discussion Plaintiff alleges that his defense attorneys in his state court criminal
proceeding have rendered ineffective assistance and that they have conspired with “known state actors” to deprive Plaintiff of his constitutional rights. Am. Compl. at 3. A. Federal Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by
conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As the Court explained in its Initial Review Order, an attorney—even a public defender—does not act under color of state law when representing a criminal defendant. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981);
Init. Rev. Order at 4. Plaintiff attempts to show that his defense attorneys were state actors by stating, “[D]efendants did purposely enter into a multifaceted and extensive
criminal conspiracy against plaintiff with known state actors, thereby becoming de facto state actors themselves.” Am. Compl. at 3. This bare assertion of a conspiracy, unsupported by any specific factual allegations, is not entitled to the
presumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (“It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”).
Because Defendants did not act under color of state law, Plaintiff’s § 1983 claims are implausible. B. State Law Claims Plaintiff also asserts state law claims under various statutes found in Title
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
KELLY LEE KENNEMER, Case No. 3:25-cv-00019-BLW Plaintiff, SUCCESSIVE REVIEW ORDER v. BY SCREENING JUDGE
GREG RAUCH and LAWRENCE MORAN,
Defendants.
Plaintiff Kelly Kennemer is a prisoner proceeding pro se and in forma pauperis in this civil rights action. The Court previously reviewed Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915 and 1915A, determined that it failed to state a claim upon which relief could be granted, and allowed Plaintiff an opportunity to amend. See Initial Review Order, Dkt. 11. Plaintiff has now filed an Amended Complaint. Dkt. 15. The Court retains its screening authority pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Having reviewed the Amended Complaint, the Court concludes that Plaintiff has failed to remedy the deficiencies in the initial complaint, and the Court will dismiss this case pursuant to 28 U.S.C. §§ 1915 and 1915A. 1. Request for Appointment of Counsel Plaintiff seeks appointment of counsel. Am. Compl. at 4. Unlike criminal
defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is
within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the
court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id. Further, an attorney cannot be forced to represent an indigent litigant in a civil case—rather, the attorney can only be “appointed” if she voluntarily accepts the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296,
298 (1989) (holding that the appointment of counsel provision in § 1915, formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v.
Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney to represent Plaintiffs pro bono.”).
The legal issues in this matter are not complex, and Plaintiff has been able to file documents with the Court and protect Plaintiff’s interests to date. In addition, as explained below, the Amended Complaint fails to state a claim upon which
relief may be granted; therefore, Plaintiff does not have a likelihood of success on the merits. Accordingly, the Court will deny Plaintiff’s request for appointment of counsel. 2. Screening Requirement and Pleading Standard
The Court must dismiss a prisoner or in forma pauperis complaint—or any portion thereof—that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §§ 1915(e)(2) & 1915A(b). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken
as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[D]etailed factual allegations” are not required, but a
plaintiff must offer “more than . . . unadorned, the-defendant-unlawfully-harmed- me accusation[s].” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” the complaint has not stated a
claim for relief that is plausible on its face. Id. (internal quotation marks omitted). 3. Discussion Plaintiff alleges that his defense attorneys in his state court criminal
proceeding have rendered ineffective assistance and that they have conspired with “known state actors” to deprive Plaintiff of his constitutional rights. Am. Compl. at 3. A. Federal Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by
conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As the Court explained in its Initial Review Order, an attorney—even a public defender—does not act under color of state law when representing a criminal defendant. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981);
Init. Rev. Order at 4. Plaintiff attempts to show that his defense attorneys were state actors by stating, “[D]efendants did purposely enter into a multifaceted and extensive
criminal conspiracy against plaintiff with known state actors, thereby becoming de facto state actors themselves.” Am. Compl. at 3. This bare assertion of a conspiracy, unsupported by any specific factual allegations, is not entitled to the
presumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (“It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”).
Because Defendants did not act under color of state law, Plaintiff’s § 1983 claims are implausible. B. State Law Claims Plaintiff also asserts state law claims under various statutes found in Title
18, which is Idaho’s criminal code. Am. Compl. at 2. However, these statutes— specifically, §§ 2601, 2602, 2603, 3201, 3203, 5401, 5410, and 1701—do not give rise to a right of action enforceable by private citizens.
In Yoakum v. Hartford Fire Ins. Co., the Idaho Supreme Court considered whether an implied private right of action existed under a criminal statute. 923 P.2d 416, 421 (Idaho 1996). The court held that it did not, basing its decision on the following factors: (1) the statute was enacted to protect the general public,
(2) there was no indication that the legislature intended to create a private cause of action, (3) the statute provided for a criminal punishment, and (4) there was no indication that providing an additional civil remedy was necessary to assure the
effectiveness of the statute. Id. The Yoakum court noted that “[i]n the absence of strong indicia of a contrary legislative intent, courts must conclude that the legislature provided precisely the remedies it considered appropriate.” Id. (relying
on Middlesex County Sewerage Auth. v. National Sea Clammers, 453 U.S. 1, 15 (1981). Here, there is no indication that the Idaho Legislature intended to create a
private right of action in the criminal statutes cited by Plaintiff, and the statutes— all of which were enacted for the general welfare—provide for criminal punishment without the slightest reference to any civil remedy. Thus, the factors identified in Yoakum apply equally to the Idaho criminal statutes cited by Plaintiff,
and these claims must be dismissed as implausible. For the foregoing reasons, the Amended Complaint is subject to dismissal for failure to state a claim upon which relief may be granted.
4. Conclusion Although pro se pleadings must be liberally construed, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982). Because Plaintiff has already been given the opportunity to amend and still has failed to state a plausible claim for relief, the Court will dismiss the Amended Complaint with prejudice and without further
leave to amend. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”’). ORDER IT IS ORDERED: 1. The Amended Complaint fails to state a claim upon which relief may be granted. Therefore, for the reasons stated in this Order and the Initial Review Order (Dkt. 11), this entire case is DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) & 1915A(b)(1). 2. Because Plaintiff has already been granted in forma pauperis status, see Dkt. 10, Plaintiff's most recent Application to Proceed In Forma Pauperis (Dkt. 16) is MOOT.
te 1 DATED: August 4, 2025 = ° Me all ))
SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE - 7