(PC) Martinez v. Standon ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, No. 1:19-cv-00845-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 TIMOTHY STANDON, et al., ACTION 15 Defendants. (Doc. No. 22) 16 17 18 Plaintiff Ricardo Martinez is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 20 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On September 24, 2019, the assigned magistrate judge issued findings and 22 recommendations recommending that this action be dismissed due to plaintiff’s failure to state a 23 claim and because plaintiff’s claims in this action are duplicative of his claims presented in 24 another action pending before this court, Martinez v. Lewis, No. 1:19-cv-00812-SAB (PC). (Doc. 25 No. 22.) The findings and recommendations were served on plaintiff and contained notice that 26 any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 11.) On 27 October 15, 2019, plaintiff filed his objections to those findings and recommendations. (Doc. No. 28 23.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 | court has conducted a de novo review of the case. Having carefully reviewed the entire file, the 3 | court finds the findings and recommendations to be supported by the record and proper analysis. 4 In his objections, plaintiff does not meaningfully dispute the magistrate judge’s finding 5 | that his second amended complaint fails to state a cognizable claim. Instead, plaintiff requests the 6 | appointment of counsel “for the limited purposes of investigating the claims” and leave to 7 | thereafter file a third amended complaint. (Doc. No. 23 at 1.) The magistrate judge, however, 8 || has already denied plaintiff's two prior requests for appointment of counsel, finding that he failed 9 | to demonstrate exceptional circumstances justifying such appointment. (See Doc. Nos. 16, 20.) 10 | The undersigned finds that plaintiffs third request for appointment of counsel similarly does not 11 || demonstrate exceptional circumstances because plaintiff has not shown a likelihood of success on 12 | the merits of his claims, nor does the court find that the legal issues implicated by those claims 13 | are complex. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“A finding of 14 || exceptional circumstances requires an evaluation of both the likelihood of success on the merits 15 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 16 | legal issues involved.”) (internal quotation marks and citation omitted). Accordingly, □□□□□□□□□□□ 17 | third request for appointment of counsel will be denied. 18 For the reasons set forth above, 19 1. The findings and recommendations issued on September 24, 2019 (Doc. No. 22) 20 are adopted; 21 2. This action is dismissed due to plaintiffs failure to state a cognizable claim for 22 relief; 23 3. Plaintiff's request for appointment of counsel (Doc. No. 23 at 1) is denied; and 24 4. The Clerk of the Court is directed to close this action. 25 | IT IS SO ORDERED. me □ Dated: _ December 10, 2019 Dol A naan 27 UNITED STATES DISTRICT JUDGE 28