United States District Court, D. Hawaii
RICHARD J. SANDOWSKI, Plaintiff,
JOHN F. KELLY; DOUG ROLEFSON; GENOA LOPEZ; JOAN DE LA CRUZ; MARC MAYAKAWA; and STAN TADAKI, Defendants.
ORDER (1) ADOPTING FINDINGS AND RECOMMENDATION THAT
PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL BE DENIED,
AND (2) AFFIRMING ORDER DENYING PLAINTIFF'S MOTION FOR
Oki Mollway United States District Judge
this court are Plaintiff Richard J. Sandowski's
objections to Magistrate Judge Richard L. Puglisi's
Findings and Recommendation to Deny Plaintiff's Request
for Appointment of Counsel filed on May 25, 2018
(“F&R”) and his Order Denying Plaintiff's
Motion for Reconsideration filed on June 15, 2018
(“Reconsideration Order”). See ECF Nos.
27, 32, and 36.
proceeding pro se, filed a Request for Appointment
of Counsel Under the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5(f)(1)(B) (“Request”). ECF No. 26.
The F&R recommended that this court deny the Request
because Sandowski had not made a reasonably diligent effort
to obtain counsel and did not provide sufficient information
with respect to his financial resources and the merit of his
claims. ECF No. 27, PageID #s 175-78.
carefully considered the materials submitted by Sandowski,
this court adopts the F&R, affirms the Reconsideration
Order, and denies Sandowski's Request.
September 19, 2017, Sandowski filed a Complaint, asserting
employment discrimination claims against Defendants under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17. ECF No. 1, PageID #s 2-5.
Sandowski alleges that he was employed on the island of Lanai
by the Transportation Security Administration, an agency of
the United States Department of Homeland Security, and that
Defendants discriminated against him based on his race and
religion. See id. He alleges that, between October
2004 and August 2006, he was subject to unequal treatment,
retaliated against, suffered “perjury, obstruction of
justice, physical assault, and abuse of authority, ”
and was ultimately wrongfully terminated. See at
STANDARDS OF REVIEW.
Magistrate Judge addressed Sandowski's original request
for counsel in an F&R, rather than in an order. It is not
clear why an order did not issue with respect to that
nondispositive matter. When an order is reviewed by a
district judge, the district judge determines whether it is
clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1). By contrast, proposed findings and recommendations
are reviewed de novo. Id.; see
also Local Rules 72.3, 72.4, 74.1, and 74.2.
court reviews de novo those portions of the F&R
to which objection is made and may accept, reject, or modify,
in whole or in part, the F&R made by the Magistrate
Judge. The court may also receive further evidence on the
matter or recommit it to the Magistrate Judge with
instructions. The court may accept those portions of the
Magistrate Judge's F&R that are not objected to if it
is satisfied that there is no clear error on the face of the
record. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); Local Rule 74.2; Painsolvers, Inc. v. State Farm
Mut. Auto. Ins. Co., Civ. No. 09-00429 ACK-KSC, 2012 WL
1982433, at *1 (D. Haw. May 31, 2012).
court may consider the record developed before the Magistrate
Judge. Local Rule 74.2. A de novo hearing relating
to an F&R is not required. United States v.
Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
court reviews the F&R de novo and reviews the
Reconsideration Order to determine if it is clearly erroneous
or contrary to law. The standard of review actually does not
affect the present ruling, as this court agrees with the
Magistrate Judge under either standard.
stated in the F&R, there is no constitutional right to
the appointment of counsel in employment discrimination
cases, and the decision to appoint counsel is within the
discretion of the court. See Ivey v. Bd. Of Regents of
Univ. of Ala., 673 F.2d 266, 269 (9th Cir. 1982);
Johnson v. U.S. Treasury Dep't, 27 F.3d 415, 416
(9th Cir. 1994). The court should consider the following
three factors in determining whether to appoint counsel:
“(1) the plaintiff's financial resources; (2) the
efforts made by the ...