United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
Morris, United States District Court Judge
Robert DaSilva filed a motion to proceed in forma pauperis
and a proposed Complaint alleging that he had been confined
in unconstitutional conditions at the Cascade County
Detention Center (“CCDC”). DaSilva further filed
a document in which he challenges several aspects of his
ongoing criminal prosecution in state court and a request for
appointment of counsel. (Doc. 6.)
States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this matter on November 6, 2017. (Doc. 7.)
Judge Johnston granted the motion to proceed in forma
pauperis and the motion to amend his complaint. Id.
Judge Johnston denied DaSilva's request for appointment
of counsel. Id. Judge Johnston recommended that the
City of Great Falls, Montana (“City”) should be
dismissed from this matter. Id. at 12. Judge
Johnston further recommended that the Court should abstain
from hearing DaSilva's claims regarding his ongoing state
court criminal prosecution as set forth in his supplemental
brief filed November 1, 2017. Id.
timely filed an objection on November 14, 2017. (Doc. 9.)
DaSilva's objections generally refer to both Judge
Johnston's order denying appointment of counsel and his
recommendation to dismiss the City. Id. at 4-5.
Court reviews de novo findings and recommendations
to which objections are made. 28 U.S.C. § 636(b)(1)(C).
Portions of findings and recommendations to which no party
specifically objects are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Court acknowledges DaSilva's pro se status. The
Court must “liberally construe” pro se
filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Therefore, the Court construes DaSilva's objections
liberally and reviews de novo the recommendation to dismiss
the City. To the extent that DaSilva objects to Judge
Johnston's order to deny appointment of counsel, this
Court reviews those portions for clear error. Grimes v.
City & Cnty. of San Francisco, 951 F.2d 236, 241
(9th Cir. 1991). This Court must defer to the
magistrate's order unless it is clearly erroneous or
contrary to law. Id.
Johnston recommended that the City should be dismissed from
this matter. (Doc. 7 at 4.) DaSilva objects to the removal of
the “City of Great Falls” as a
“non-entity.” (Doc. 9 at 4.) DaSilva argues that
the City holds him at the jail, the City has jurisdiction
over the charge, the City levied taxes to build the jail, the
City's taxes fund the jail, and the City pays for his
incarceration. Id. DaSilva currently remains
incarcerated at CCDC which constitutes a county entity, not a
city entity. (Doc. 7 at 4.) Judge Johnston determined that no
basis exists for City liability in this matter. Id.
The Court agrees with Judge Johnston's determination that
the City should be dismissed.
Johnston concluded that no one, including incarcerated
prisoners, has a constitutional right to be represented by
appointed counsel when bringing a § 1983 claim. See
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1998). A
judge may merely request counsel under “exceptional
circumstances.” 28 U.S.C. § 1915(e)(1);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991). A finding of exceptional circumstances include an
evaluation of the likelihood of success on the merits and the
ability of the petitioner to articulate his claims.
Terrell, 935 F.2d at 1017. DaSilva argues that he
cannot procure legal literature given his current
incarceration. (Doc. 9 at 5.) Judge Johnston determined that
DaSilva did not demonstrate that exceptional circumstances
exist for the Court to request counsel to represent him in
this matter. (Doc. 7 at 6.) The Court agrees with Judge
Johnston's determination that DaSilva has not established
the likelihood of success on the merits or an inability to
articulate his claims pro se.
Court has reviewed the remainder of Judge Johnston's
Findings and Recommendations for clear error. The Court finds
no error in Judge Johnston's Findings and
Recommendations, and adopts them in full.
IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 7), are ADOPTED IN FULL.
IS ORDERED that the City of Great Falls, Montana is
IS FURTHER ORDERED that the Court shall ABSTAIN from
hearing DaSilva's claims regarding his ongoing ...