Williams v. United States of America

Opinion

1 2

5 UNITED STATES DISTRICT COURT AT TACOMA 7 LISETTE C. WILLIAMS, CASE NO. C23-5196 BHS 8 Plaintiff, ORDER 9 v. 11 Defendant. 12

13 This matter is before the Court on Magistrate Judge Theresa L. Fricke’s Report 14 and Recommendation (R&R), Dkt. 21, recommending the Court deny pro se plaintiff 15 Lisette Williams’s application to proceed in forma pauperis and dismiss her complaint 16 without prejudice for failure to cure the deficiencies in her proposed complaint identified 17 by the Court in its Order to Show Cause or Amend, Dkt. 3. 18 Williams’s motion for recusal was denied, Dkts. 4, 5, 7, and she ultimately filed 19 what she called an amended complaint, Dkt. 20. But that filing re-hashes her complaints 20 about the Court, and describes her mental disabilities and her desire for court-appointed 21 counsel. Its does not address her claims against the defendant and it does not state a 22 plausible claim for relief. Williams’s objection to the R&R, Dkt. 22, similarly does not 1 address the R&R’s conclusion that she has failed to state a plausible claim, and that her 2 application to proceed in forma pauperis should therefore be denied. Williams instead

3 reiterates her claim that the Court is biased and that she is entitled to a court-appointed 4 attorney. Dkt. 22-1. 5 A pro se Plaintiff’s complaint is to be construed liberally, but like any other 6 complaint it must nevertheless contain factual assertions sufficient to support a facially 7 plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 8 L. Ed. 2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

9 Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim for relief is facially plausible when “the 10 plaintiff pleads factual content that allows the court to draw the reasonable inference that 11 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 12 A district court “shall make a de novo determination of those portions of the report 13 or specified proposed finding or recommendations to which objection is made.” 28

14 U.S.C. § 636(b)(1)(C) (emphasis added); accord Fed. R. Civ. P. 72(b)(3). “The statute 15 makes it clear that the district judge must review the magistrate judge’s findings and 16 recommendations de novo if objection is made, but not otherwise.” United States v. 17 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). A proper objection requires 18 “specific written objections to the proposed findings and recommendations” in the R&R.

19 Fed. R. Civ. P. 72(b)(2). 20 There is no constitutional right to counsel for an indigent plaintiff in a civil case 21 unless the plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. 22 Dept. of Social Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1 1915(e)(1), the Court has the discretion to appoint counsel for indigent litigants who are 2 proceeding in forma pauperis. United States v. $292,888.04 in U.S. Currency, 54 F.3d

3 564, 569 (9th Cir. 1995). 4 The Court will appoint counsel under only “‘exceptional circumstances.’” Id. 5 (quoting Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)); accord Wilborn v. 6 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional 7 circumstances requires an evaluation of both ‘the likelihood of success on the merits and 8 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

9 legal issues involved.’” Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 10 952, 954 (9th Cir. 1983)). These factors must be viewed together before reaching a 11 decision on whether to appoint counsel under § 1915(e)(1). Id. 12 Because Williams has not stated a plausible claim, she has not demonstrated any 13 likelihood of success on the merits of that claim. She is not entitled to a court-appointed

14 attorney. For the same reason, she is not entitled to proceed in forma pauperis. 15 The R&R is ADOPTED. Williams’s application to proceed in forma pauperis is 16 DENIED and this case is DISMISSED without prejudice. 17 The Clerk shall enter a JUDGMENT and close the case.

19 Dated this 13th day of February, 2024. A 20 21 BENJAMIN H. SETTLE 22 United States District Judge