(PC) Martinez v. Lewis

Opinion

RICARDO MARTINEZ, No. 1:19-cv-00812-DAD-SAB (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATONS, DISMISSING J. LEWIS, et al., ACTION Defendants. (Doc. No. 22, 23) Plaintiff Ricardo Martinez is a state prisoner appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On October 8, 2019, the assigned magistrate judge issued findings and recommendations, recommending that this action be dismissed for failure to state a cognizable claim for relief. (Doc. No. 22.) The findings and recommendations were served on plaintiff and contained notice that objections thereto were due within twenty-one (21) days. (Id.) Plaintiff filed his objections on October 23, 2019. (Doc. No. 23.) In those objections, plaintiff fails to meaningfully dispute the magistrate judge’s finding that his third amended complaint does not state a cognizable claim. Instead, he requests the appointment of counsel for the “limited purpose of investigating the claims & then drafting and filing a Fourth Amended Complaint.” (/d.) The magistrate judge has denied plaintiff's three previous requests for appointment of counsel, each time finding that plaintiff failed to demonstrate exceptional circumstances in this case that would justify the appointment of counsel. (Doc. Nos. 13, 16, 21.) Plaintiffs fourth request is similarly fated, as plaintiff has again failed to demonstrate exceptional circumstances justifying the appointment of counsel. Plaintiff has not shown a likelihood of success on the merits and the court does not find that the legal issues implicated by his claims are complex. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) Un determining whether “exceptional circumstances exist, the district must evaluate both the likelihood of success on the merits [and] the ability to articulate his claims pro se in light of the complexity of the legal issues involved.”) (internal quotation marks and citations omitted). Accordingly, plaintiffs fourth request for appointment of counsel will be denied. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of this case.! Having carefully reviewed the entire file, including plaintiff's objections, the court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly: 1. The findings and recommendations issued on October 8, 2019 (Doc. No. 22) are adopted; 2. This action is dismissed without leave to amend for failure to state a cognizable claim for relief; 3. Plaintiff's request for the appointment of counsel (Doc. No. 23) is denied; and 4. The Clerk of the Court is directed to close this action. IT IS SO ORDERED. me □ Dated: _ December 13, 2019 Dal AL naan UNITED STATES DISTRICT JUDGE | | The court notes that the claims brought in this case are substantially similar to those brought by plaintiff in Martinez v. Standon et al., Case No. 1:19-cv-00845-SAB (PC) (E.D. Cal.). That case was dismissed by this court for failure to state a cognizable claim.