Hook v. Ojeda

Middle District of Florida, flmd-8:2017-cv-01100

ORDER: The Report and Recommendation (Doc. # {{5}}) is ACCEPTED and ADOPTED. Plaintiff's construed Motion for Leave to Proceed in forma pauperis (Doc. # {{2}}) is DENIED. Plaintiff's Motion for Appointed Counsel (Doc. # {{6}}) is DENIED. Plaintiff's Motion for Continuance (Doc. # {{7}}) is DENIED. This action is DISMISSED. The Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 7/25/2017. (KAK)

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PageID 71 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION THOMAS MANNING HOOK, Plaintiff, v. Case No. 8:17-cv-1100-T-33TBM HONORABLE REINALDO OJEDA, Defendant. _______________________________/ ORDER This matter is before the Court on consideration of United States Magistrate Judge Thomas B. McCoun's Report and Recommendation (Doc. # 5), filed on July 5, 2017, recommending that Plaintiff's construed Motion for Leave to Proceed in forma pauperis be denied. Judge McCoun also recommends that the case be dismissed as frivolous. The Report and Recommendation provided that Plaintiff had an opportunity to object during a finite, 14-day period. (Id. at 5). However, rather than objecting to the Report and Recommendation, Plaintiff filed a Motion requesting court appointed counsel (Doc. # 6) and a Motion to continue. (Doc. # 7). As explained below, the Court denies Plaintiff's Motions, adopts the Report and Recommendation, and dismisses the case as frivolous. I. Motion to Appoint Counsel and Motion to Continue Plaintiff, an individual appearing pro se, requests that the Court appoint counsel to assist in prosecuting this PageID 72 matter. Title 28 U.S.C. § 1915(e)(1) provides that "[t]he court may request an attorney to represent any person unable to afford counsel." However, the appointment of counsel in a civil case is not guaranteed and lies within the discretion of the trial court. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) (citations omitted). "The appointment of counsel is [ ] a privilege that is justified only by exceptional circumstances, such as where the facts and legal issues are so novel or complex as to require the assistance of a trained practitioner." Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (citations omitted). The key is whether the pro se litigant needs assistance presenting the essential merits of his position to the court. The following factors determine whether exceptional circumstances exist: (1) the type and complexity of the case; (2) whether the litigant is capable of adequately presenting his case; (3) whether the litigant is in a position adequately to investigate the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross- examination. Burgess v. Bradshaw, 626 F. Appx. 257, 259 (11th Cir. 2015). Further, The Supreme Court has explained that appointment of counsel in a civil case may be appropriate when "quasi-criminal penalties or severe civil remedies are at stake, such as those in a civil commitment proceeding or when -2- PageID 73 an indigent risks losing his or her child in a custody case." Washington v. United States, 93 Fed. Cl. 706, 708–09 (Fed. Cl. 2010). Thus, "only in civil cases that present an extreme hardship to petitioner are courts empowered to cause legal assistance to be provided." Id. Plaintiff has not discussed the factors relevant to the appointment of counsel or otherwise demonstrated any reason why the Court should appoint counsel to represent him. This is not a case in which exceptional circumstances justify the appointment of counsel to a pro se plaintiff, and the Court accordingly denies the Motion for Appointment of Counsel. In addition, Plaintiff has not advanced any specific reason for the requested continuance. In the Motion to Continue, Plaintiff requests "a continuance for the above listed cause in order to allow plaintiff the time to file and receive rulings on existing and connected court motions in order to receive a fair hearing and ensure justice." (Doc. # 7). Finding the Motion to be devoid of substance, the Court denies the Motion for a Continuance. II. Report and Recommendation and Dismissal of Complaint The Report and Recommendation explains that Plaintiff's Complaint names a state Circuit Court Judge as the Defendant. And, "Judge Ojeda is entitled to absolute judicial immunity -3- PageID 74 from damages arising from those acts taken in his judicial capacity unless he acted in the clear absence of all jurisdiction. Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005)." (Doc. # 5 at 4). Because the Complaint seeks to impose liability upon an individual immune from suit, the Magistrate Judge recommends denial of in forma pauperis status and further recommends dismissal of the Complaint as frivolous. As of this date, there are no objections to the report and recommendation, and the time for the parties to file such objections has elapsed. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d -4- PageID 75 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994). After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepts the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. Accordingly, it is ORDERED, ADJUDGED, and DECREED: (1) The Report and Recommendation (Doc. # 5) is ACCEPTED and ADOPTED. (2) Plaintiff's construed Motion for Leave to Proceed in forma pauperis (Doc. # 2) is DENIED. (3) Plaintiff's Motion for Appointed Counsel (Doc. # 6) is DENIED. (4) Plaintiff's Motion for Continuance (Doc. # 7) is DENIED. (5) This action is DISMISSED. (6) The Clerk shall CLOSE THIS CASE. DONE and ORDERED in Chambers in Tampa, Florida, this 25th day of July, 2017. -5-