GEORGE O. MITCHELL, Plaintiff,
STATE OF WASHINGTON, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 82), and Plaintiff George Mitchell's ("Mitchell") objections to the R&R (Dkt. 83).
On September 5, 2013, Judge Strombom issued the R&R recommending that the Court grant Defendants' motion for summary judgment, dismiss Mitchell's federal claims with prejudice, and dismiss Mitchell's state claims without prejudice. Dkt. 82. On September 26, 2013, Mitchell filed objections. Dkt. 83.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
A. Appointment of Counsel
Mitchell argues that Judge Strombom abused her discretion by denying his motion to appoint counsel. Dkt. 83 at 3-6. There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the court, under 28 U.S.C. § 1915(e), can request counsel to represent a party proceeding in forma pauperis, the Court may do so only in exceptional circumstances. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
In this case, the Court finds that Judge Strombom did not abuse her discretion by denying Mitchell's motion to appoint counsel. Mitchell has failed to show that exceptional circumstances exist as he is clearly able to articulate his claims and cite relevant case law. Therefore, the Court denies Mitchell's objections on this issue.
B. Eleventh Amendment
In their motion for summary judgment, Defendants Cunningham and Bell argued that claims for damages were barred by the Eleventh Amendment. Dkt. 46 at 8. Mitchell failed to respond to this argument. See Dkt. 76. Judge Strombom granted the motion on this issue based on Mitchell's concession at his deposition that he was only suing these defendants in their official capacity. Dkt. 82 at 10. Mitchell objects to the R&R on this issue arguing that he "erred on the record when answering" the questions in his deposition. Dkt. 83 at 6. Mitchell cannot overcome an important concession by stating for the first time that he "erred" in his answer. Even if he could, his burden was to produce facts to show that material questions of fact exist for trial on the issues in question. He failed to respond or direct Judge Strombom to facts that meet his burden. Therefore, the Court adopts the R&R on this issue.
C. Declaration of Howard Welsh and Ricardo Cappello
Along with his response, Mitchell submitted the declaration of Howard Welsh (Dkt. 78) and Ricardo Cappello (Dkt. 79). Judge Strombom excluded both declarations from consideration. Dkt. 82 at 16-18. With regard to Mr. Welsh's declaration, Judge Strombom found that it was not properly authenticated and failed to establish Mr. Welsh as a reliable expert. Mitchell objects to the exclusion of this declaration, but fails to submit facts that solve either of the evidentiary problems. Dkt. 83 at 7-11. Therefore, the Court adopts the R&R as to the declaration of Mr. Welsh.
With regard to the declaration of Mr. Cappello, Judge Strombom excluded the declaration because Mr. Cappello is a fellow resident of the Special Commitment Center and his declaration is irrelevant to any of Mitchell's claims. Dkt. 82 at 18. Mitchell objects on the grounds that Mr. Cappello's declaration is relevant evidence in support of the fact that Defendant Bell had previously failed to follow the appropriate standard of care. Dkt. 83 at 14-15. Mitchell, however, fails to show that allegations of Defendant Bell's previous misconduct are relevant to Mitchell's care. Therefore, the Court adopts the R&R as to the declaration of Mr. Cappello.
D. Declaration of Dr. Leslie Seizbert
Mitchell objects to Judge Strombom's reliance on the declaration of Dr. Leslie Seizbert because he argues that the declaration is misleading. Dkt. 83 at 16. Mitchell contends that Dr. Seizbert "may have" overlooked some of Mitchell's medical records before making his professional opinion. Id. Such an equivocal accusation fails to show that ...