United States District Court, D. Idaho
MALCOLM D. HANSON, Plaintiff,
BADGER MEDICAL and ASHLEE, an employee of Badger Medical, Defendants.
SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
Malcolm D. Hanson 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. (Initial
Review Order, Dkt. 11.)
has now filed several motions. The Court construes
Plaintiff’s Motion to Amend (Dkt. 17) as including an
amended complaint. The Court retains its screening authority
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
reviewed the amended complaint, the Court concludes that
Plaintiff has failed to remedy the deficiencies in his
initial Complaint, and the Court will dismiss this case
pursuant to 28 U.S.C. §§ 1915 and 1915A.
Motion for Appointment of Counsel
seeks appointment of counsel. (Dkt. 19.) 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).
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 his 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 he or 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., 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
legal issues in this matter are not complex, and Plaintiff
has been able to file documents with the Court and protect
his interests to date. In addition, as the Court concludes
below, the amended complaint fails to state a federal claim
upon which relief may be granted; therefore, Plaintiff does
not have a likelihood of success on the merits of those
claims. Accordingly, the Court will deny Plaintiff’s
Motion for Appointment of Counsel.
explained in the Initial Review Order, 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(d)(2) & 1915A(b).
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,
Id. (internal quotation marks omitted). If the facts
pleaded are “merely consistent with a defendant’s
liability, ” or if there is an “obvious
alternative explanation” that would not result in
liability, the complaint has not stated a claim for relief
that is plausible on its face. Id. at 678, 682
(internal quotation marks omitted).
brings his federal 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). To be liable under § 1983, “the
defendant must possess a purposeful, a knowing, or possibly a
reckless state of mind.” Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2472 (2015). Negligence is
not actionable under § 1983, because a negligent act by
a public official ...