UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JONATHAN MICHAEL WHITNEY, Case No. 1:22-cv-00232-BLW Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE

IDAHO COMMISSION OF PARDONS AND PAROLE,

Defendant.

The Clerk of Court conditionally filed Plaintiff Jonathan Michael Whitney’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it or any of the claims contained therein should be summarily dismissed under

and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order dismissing this case with prejudice. 1. Request for Appointment of Counsel Plaintiff seeks appointment of counsel. See Compl., Dkt. 3, at 5. Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services,

(1981). Whether a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v. Escalderon,

(9th Cir. 1986).

In civil cases, counsel should be appointed only in “exceptional circumstances.”

To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the

case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer,

(9th Cir. 1991). Neither factor is dispositive, and both must be evaluated together.

Further, an attorney cannot be forced to represent an indigent litigant in a civil

case—rather, the attorney can only be “appointed” if he or she voluntarily accepts the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa,

(1989) (holding that the appointment of counsel provision in § 1915,

formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v. Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney to represent

Plaintiffs pro bono.”). The legal issues in this matter are not complex, and Plaintiff has been able to file documents with the Court and protect his interests to date. In addition, as

explained below, the Complaint fails to state a claim upon which relief may be granted; therefore, Plaintiff does not have a likelihood of success on the merits. Accordingly, the Court will deny Plaintiff’s request for appointment of counsel.

2. Pleading Standards and Screening Requirement A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under modern pleading standards, Rule 8 requires a complaint to “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). The Iqbal/Twombly “facial plausibility”

standard is met when a complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

(citing Twombly,

). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned, the-defendant-

unlawfully-harmed-me accusation[s].”

(internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the

complaint has not stated a claim for relief that is plausible on its face.

(internal quotation marks omitted). Bare allegations that amount to a mere restatement of the elements of a cause of action, without adequate factual support, are not enough. The Prison Litigation Reform Act (“PLRA”)1 requires that the Court review complaints filed by prisoners seeking relief against a governmental entity or an

officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate.

& 1915A. The Court must dismiss any claims that do not have adequate

factual support or are frivolous or malicious.

(e)(2) & 1915A. The Court also must dismiss claims that fail to state a claim upon which relief may be granted or that seek monetary relief from a defendant who is immune from such relief.

These last two categories—together with claims that fall

outside a federal court’s narrow grant of jurisdiction—encompass those claims that might, or might not, have factual support but nevertheless are barred by a well- established legal rule.

The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual

and legal basis. See Jackson v. Arizona,

(9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on

1

Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. other grounds as stated in Lopez v. Smith,

(9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA,

giving courts power to dismiss deficient claims, sua sponte, before or after opportunity to amend). Moreover, even if a complaint meets the pleading requirements, dismissal under §§ 1915 and 1915A is still appropriate if an

affirmative defense is an “obvious bar to securing relief on the face of the complaint.” Washington v. Los Angeles Cty. Sheriff’s Dep’t,

(9th Cir. 2016) (internal quotation marks omitted). 3. Factual Allegations

Plaintiff is a prisoner in the custody of the Idaho Department of Correction, currently incarcerated at the Idaho State Correctional Center. Plaintiff alleges that he has been improperly denied parole “for the third time.” Compl. at 2. Plaintiff sues the Idaho Commission of Pardons and Parole, which is a state entity. Plaintiff

asserts claims under

, the federal civil rights statute, as well as unidentified claims under Idaho state law. See

. 4. Discussion To state a plausible civil rights claim, a plaintiff must allege a violation of

rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates,

(9th Cir. 1991). However, states and state entities are not “persons” for purposes of § 1983. Will v. Mich. Dep’t of State Police,

(1989). Moreover, even if the Commission were a “person,” it is immune from

suit in federal court under the Eleventh Amendment. Hans v. Louisiana,

(1890); Pennhurst State Sch. & Hosp. v. Halderman,

(1984). Therefore, Plaintiff’s Complaint fails to state a claim upon which relief

may be granted. 5. Opportunity to Amend The Court now considers whether to allow Plaintiff an opportunity to amend the Complaint. Amendments to pleadings are governed by Rule 15 of the Federal

Rules of Civil Procedure. That rule states that the Court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has explained the reasoning behind allowing the opportunity to amend: In exercising its discretion with regard to the amendment of pleadings, a court must be guided by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or technicalities. This court has noted on several occasions that the Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a) ... by freely granting leave to amend when justice so requires. Thus Rule 15’s policy of favoring amendments to pleadings should be applied with extreme liberality.

Eldridge v. Block,

(9th Cir. 1987) (internal citations, quotation marks, and alterations omitted). “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.,” it is appropriate for a court to grant leave to amend. Foman v. Davis,

(1962). This liberal amendment policy is even more important with respect to pro se

plaintiffs, who generally lack legal training. Courts must liberally construe civil rights actions filed by pro se litigants so as not to close the courthouse doors to those truly in need of relief. Eldridge,

. A pro se litigant bringing a civil rights suit must have an opportunity to amend the complaint to

overcome deficiencies unless it is clear that those deficiencies cannot be overcome by amendment.

. Although several factors contribute to the analysis of whether a plaintiff should be allowed an opportunity to amend, futility alone can

justify denying such an opportunity. Johnson v. Buckley,

(9th Cir. 2004). The Court concludes that amendment in this case would be futile. Plaintiff’s claims are barred because it is clear from the face of the Complaint that the only

named Defendant is not subject to liability under § 1983 and is immune from suit in federal court. Therefore, the Court will dismiss the Complaint without leave to amend. ORDER IT IS ORDERED that this case is DISMISSED with prejudice for failure to

state a claim upon which relief may be granted. See

(e)(2)(B) & 1915A(b)(1).

As DATED: July 26, 2022 NS OP Wan | CO ip As Lynn Winmill cro U.S. District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 8