United States District Court, D. Hawaii
WILLIAM W. RAMSEY, JR., Plaintiff,
PARK LANE MANAGEMENT AND SECURITY TEAM; KITV 4 NEWS; KGMB 9 NEWS; KHNL 5 NEWS; KHON 2 NEWS; NEWS ANCHORS AND ALL NEWS CHANNELS IN HAWAII, Defendants.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL AND TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT WITH LEAVE TO
the Court is Plaintiff's Motion for Appointment of Pro
Bono Counsel. ECF No. 7. The Court finds this matter suitable
for disposition without a hearing pursuant to Rule 7.2(d) of
the Local Rules of Practice of the United States District
Court for the District of Hawaii. After careful consideration
of the materials submitted by Plaintiff, the Court FINDS and
RECOMMENDS that Plaintiff's Motion for Appointment of Pro
Bono Counsel be DENIED and that Plaintiff's Amended
Complaint be DISMISSED with leave to amend.
proceeding pro se, filed an Amended Complaint on
February 2, 2019, against Defendants alleging that Defendants
violated his constitutional rights. ECF No. 6. Plaintiff
alleges that he was invited to Park Lane on January 13, 2019,
to view a condominium that was for sale when three Park Lane
security officers told him to leave the premises and escorted
him off property because they told him that they had heard
that he was a child molester from all the new channels in
Hawaii in June and July 2018. See ECF No. 6 at 5-6.
Plaintiff alleges that Defendants violated his constitutional
rights and is seeking $24 million in damages. Id. at
The Court Recommends that Plaintiff's Amended Complaint
be Dismissed With Leave to Amend.
court may dismiss a complaint for failure to comply with Rule
8 of the Federal Rules of Civil Procedure. See Hearns v.
San Bernardino Police Dep't, 530 F.3d 1124, 1131
(9th Cir. 2008). Rule 8 requires that a complaint include
“a short plain statement of the claim” and that
each allegation “be simple, concise, and direct.”
Fed.R.Civ.P. 8(a)(2), (d)(1). A complaint that is so
confusing that its “‘true substance, if any, is
well disguised'” may be dismissed sua
sponte for failure to satisfy Rule 8. Hearns,
530 F.3d at 1131 (quoting Gillibeau v. City of
Richmond, 417 F.2d 426, 431 (9th Cir. 1969)). Because
Plaintiff is appearing pro se in this action, the Court
liberally construes the pleadings. See Bernhardt v. L.A.
Cnty., 339 F.3d 920, 925 (9th Cir. 2003).
Court has reviewed Plaintiff's Amended Complaint and
concludes that, even liberally construed, the Amended
Complaint fails to state a claim. Although Plaintiff does not
specify the authority under which he seeks relief, the Court
construes his Amended Complaint as asserting claims under 42
U.S.C. § 1983. “Section 1983 imposes two essential
proof requirements upon a claimant: 1) that a person acting
under color of state law committed the conduct at issue, and
2) that the conduct deprived the claimant of some right,
privilege or immunity protected by the Constitution or laws
of the United States.” Leer v. Murphy, 844
F.2d 628, 632-33 (9th Cir. 1988).
Plaintiff's Amended Complaint fails to the first
requirement. Specifically, Plaintiff does not allege that any
Defendant acted under color of state law. Generally, Section
1983 applies to government officials and employees. However,
a private person may act under “color of law”
when he exercises power “possessed by virtue of state
law and made possible only because the wrongdoer is clothed
with the authority of state law.” West v.
Atkins, 487 U.S. 42, 49 (1988) (internal citation
omitted). Plaintiff does not allege any facts to show that
Defendants were exercising power possessed by virtue of state
law or were acting under the authority of state law.
Accordingly, Plaintiff's Amended Complaint fails to state
a claim under Section 1983.
the Amended Complaint is deficient, the Court recognizes that
“[u]nless it is absolutely clear that no amendment can
cure the defect . . ., a pro se litigant is entitled to
notice of the complaint's deficiencies and an opportunity
to amend.” Lucas v. Dep't of Corr., 66
F.3d 245, 248 (9th Cir. 1995); see also Lopez, 203
F.3d at 1126. Accordingly, the Court RECOMMENDS that the
Amended Complaint be DISMISSED without prejudice and
Plaintiff be given leave to file a second amended complaint,
addressing the deficiencies identified above, no later than
thirty days from the district court's adoption of this
Findings and Recommendation. If Plaintiff chooses to file a
second amended complaint, the document must be clearly
designated as the “Second Amended Complaint, ”
must be retyped or rewritten, and may not incorporate any
part of the original Complaint or Amended Complaint by
reference. See Local Rule 10.3.
The Court Recommends that Plaintiff's Motion to Appoint
Pro Bono Counsel be Denied.
may request counsel to represent an indigent litigant under
28 U.S.C. § 1915(e)(1) only under “exceptional
circumstances, ” taking into account the
“likelihood of success on the merits” and the
“ability of the petitioner to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991) (internal citations and quotations
omitted). As detailed above, Plaintiff has failed to state a
claim, which weighs against an appointment of counsel. The
only reason for appointment of counsel given in
Plaintiff's Motion is that Plaintiff is indigent, which
does not present an extraordinary circumstance to appoint
counsel. The Court RECOMMENDS that Plaintiff's Motion for
Appointment of Pro Bono Counsel be DENIED.
accordance with the foregoing, the Court FINDS and RECOMMENDS
that Plaintiff's Motion for Appointment of Pro Bono
Counsel be DENIED and that Plaintiff's Amended Complaint
be DISMISSED with leave to amend. The Rule 16 Scheduling
Conference set for April 1, 2019, is VACATED and will be
reset as ...