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Martinez v. Mabus

United States District Court, D. Hawaii

October 14, 2016

GARY J. MARTINEZ, Plaintiff,
v.
RAYMOND MABUS, Secretary of the Navy; and Commander JAMIE K. KALOWSKY, Captain of the Pearl Harbor Navy Shipyard, Defendants.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION, AS MODIFIED (ECF NO. 14)

          Helen Gillmor United States District Judge.

         Plaintiff Gary J. Martinez has filed a lawsuit against Raymond Mabus, Secretary of the United States Navy, and Captain Jamie K. Kalowsky, Commander of the Pearl Harbor Naval Shipyard. Plaintiff, a 60 year-old Hispanic and American Indian male, alleges that Defendants unlawfully discriminated against him on account of his race, color, national origin, age, and disability in violation of federal law.

         This matter comes before the Court pursuant to the Magistrate Judge's Findings and Recommendation to Deny Plaintiff's Request for Appointment of Counsel.

         The Findings and Recommendation (ECF No. 14) are ADOPTED as the opinion and order of this Court, AS MODIFIED.

         STANDARD OF REVIEW

         A district court reviews those portions of a magistrate judge's findings and recommendation to which a party objects de novo. 28 U.S.C. § 636(b)(1). The district court may accept unobjected portions of the findings and recommendation if the court is satisfied that there is no clear error on the face of the record. Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003); Abordo v. State of Haw., 938 F.Supp. 656, 658 (D. Haw. 1996).

         ANALYSIS

         Plaintiff Gary J. Martinez (“Plaintiff”) has filed, with the assistance of his wife, an Objection to the Magistrate Judge's Findings and Recommendation to deny Plaintiff's request for appointment of counsel. (ECF No. 15).

         I. The Objection is Untimely

         Pro se litigants must abide by all court orders, the Local Rules, the Federal Rules of Civil Procedure, and other applicable rules and statutes. LR 83.13; Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (per curiam). Federal Rule of Civil Procedure 72 provides that objections to findings and recommendations must be filed within 14 days of being served with a copy. Fed.R.Civ.P. 72(b)(2).

         The Magistrate Judge's Findings and Recommendation was served on September 16, 2016. The deadline for Plaintiff to file an Objection to the Findings and Recommendation was September 30, 2016. Plaintiff filed his Objection on October 5, 2016, five days after the September 30, 2016 deadline. Plaintiff's Objection is untimely.

         Plaintiff appears to have been previously unaware of the necessity of complying with the Court's rules. The Court will consider his untimely objections.

         II. The Magistrate Judge's Findings and Recommendation is Adopted

         A district court has discretion to appoint an attorney for pro se litigants in civil cases. 28 U.S.C. § 1915(e)(1). There is no constitutional right to appointed counsel. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Ninth Circuit Court of Appeals has indicated that the appointment of counsel in civil matters “is limited . . . to cases presenting exceptional ...


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