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Sandowski v. Kelly

United States District Court, D. Hawaii

July 3, 2018

RICHARD J. SANDOWSKI, Plaintiff,
v.
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 RECONSIDERATION

          Susan Oki Mollway United States District Judge

         I. INTRODUCTION.

         Before 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.

         Sandowski, 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.

         Having carefully considered the materials submitted by Sandowski, this court adopts the F&R, affirms the Reconsideration Order, and denies Sandowski's Request.

         II. BACKGROUND.

         On 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 6-7.

         III. STANDARDS OF REVIEW.

         The 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.

         The 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).

         The 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).

         This 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.

         IV. ANALYSIS.

         As 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 ...


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