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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CALVIN ROUSE,

Plaintiff,

v.

DOUG WADDINGTON et al.,

Defendants.

Case No. C06-5183RJB

ORDER ADOPTING

REPORT AND

RECOMMENDATION 

This matter comes before the Court on the Report and Recommendation of United States

Magistrate Judge J. Kelley Arnold. Dkt. 92. The Court has considered the Report and

Recommendation (Dkt. 92), Plaintiff’s Objections to the Report and Recommendation (Dkt. 94), and

the file herein. 

Originally filed in February of 2006, Plaintiff brings this civil rights action pursuant to 42

U.S.C. § 1983. Dkt. 6-3. On July 6, 2006, Judge Arnold’s recommendation that portions of the

Complaint dealing with the return of good time credits be dismissed without prejudice as barred by

Heck v. Humphrey, 512 U.S. 477 (1994) was adopted. Dkt. 16. Plaintiff’s motion to amend his

Complaint was granted to give him an opportunity to clarify his claims of failure to provide adequate

medical care, forcing him to submit to unwanted medical care, and battery. Id. On August 28, 2006,

Plaintiff filed his First Amended Complaint. Dkt. 19. On September 7, 2006, Plaintiff filed a motion

to Appoint Counsel (Dkt. 20) which was denied (Dkt. 22). Plaintiff filed a Motion to file a Second

Amended Complaint in November of 2006 (Dkt. 25), which was denied because he failed to attach a
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proposed Second Amended Complaint (Dkt. 27). Plaintiff again moved to file a Second Amended

Complaint in February of 2007. Dkt. 38. His motion was denied because he was attempting to add

the claims which were dismissed in July of 2006. Dkt. 41. In March of 2007, Defendants filed a

Motion for a More Definite Statement. Dkt. 42. The motion was granted, and Plaintiff filed a

Second Amended Complaint. Dkt. 49. Despite being warned not to add claims which had been

dismissed or new claims and/or defendants, Plaintiff’s Second Amended Complaint contained a claim

regarding the loss of his good time credits, and new claims and defendants. Dkt. 49. As a sanction

for failing to comply with the orders of the Court, the new claims and new defendants in the Second

Amended Complaint were dismissed with prejudice. Dkt. 59. 

Plaintiff’s remaining claims are that he was improperly placed in administrative segregation

on two occasions based upon his race and religion in violation of his Due Process rights, he received

inadequate medical care for MYRSA contrary to his Eighth Amendment rights, and Defendants used

excessive force on him in September of 2005 in violation of his Eighth Amendment rights. Dkt. 49. 

The Court notes that the Report and Recommendation refers to the date September 29, 2008 (Dkt.

92 at 2) in connection with the two Eighth Amendment claims, but all other pleadings indicate the

MYRSA medical care issue and the incident involving force took place in 2005 (See e.g. Dkt. 49, 70,

and 88). 

Pending before the Court is the Report and Recommendation recommending dismissal of the

remaining claims with prejudice. Dkt. 92. The basic facts and further procedural history are

contained in the Report and Recommendation and are adopted here by reference. Plaintiff files

Objections to the Report and Recommendation, none of which challenge the findings or conclusions

in the Report and Recommendation. Dkt. 94. Accordingly, the Report and Recommendation (Dkt.

92) should be adopted. In Plaintiff’s Objections, he argues that he should be permitted to amend his

Second Amended Complaint and have counsel appointed for him. Dkt. 94. Each of these issues will

be addressed in turn.

Plaintiff first argues that he should have been permitted to amend his complaint in order to

“prosecute involved persons who caused injuries, and to cure all deficiencies to his complaint.” Dkt.
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94, at 1. Fed. R. Civ. P. 15(a)(2) provides that “a party may amend its pleading only with the

opposing party's written consent or the court's leave. The court should freely give leave when justice

so requires.” “Five factors are taken into account to assess the propriety of a motion for leave to

amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether

the plaintiff has previously amended the complaint. Futility alone can justify the denial of a motion to

amend.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)(internal quotations and citations

omitted). 

To the extent that Plaintiff seeks for the fourth time to amend his complaint, his motion

should be denied. This matter has been pending for several years. Plaintiff has had several other

opportunities to amend his complaint. Amendment at this stage would likely prejudice the opposing

parties. Most importantly, Plaintiff has made no showing that amendment would “cure the

deficiencies” in the Complaint such that the case would survive the pending Motion for Summary

Judgment. Accordingly, amendment is futile. The motion to amend, to the extent one is made,

should be denied. 

Plaintiff secondly argues that he should have been appointed counsel and the Court “never

answered the motion.” Dkt. 94, at 1. Plaintiff appears to again request appointment of counsel. Id.

Plaintiff’s September 7, 2006, motion to appoint counsel was denied. Dkt. 22. Although it is

unclear, it appears Plaintiff may have attempted to renew his motion to appoint counsel on March 9,

2007 (Dkt. 40) and again on May 17, 2007 (Dkt. 48). To the extent that he did, his motions should

be denied. Under 28 U.S.C. § 1915(e)(1), the court may request an attorney to represent any person

unable to afford counsel. Under Section 1915, the court may appoint counsel in exceptional

circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To find exceptional

circumstances, the court must evaluate the likelihood of success on the merits and the ability of the

petitioner to articulate the claims pro se in light of the complexity of the legal issues involved. 

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 

Plaintiff did not show at the time of these motions, nor has he presently shown, that he is

likely to succeed on the merits. He has been able to articulate his claims pro se. Plaintiff is a
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seasoned litigator. He is able to explain his positions adequately and raise issues to the court. To the

extent that Plaintiff moves for appointment of counsel, his motion should be denied.

Plaintiff does not provide any reason to reject the Report and Recommendation. It should be

adopted and the case dismissed with prejudice. 

Therefore, it is ORDERED that: 

(1) Plaintiff’s Motion to Amend (Dkt. 94 ) is DENIED and Motions for Appointment of

Counsel, to the extent that he makes them, (Dkts. 40, 48 and 94) ARE DENIED; 

(2) The Court ADOPTS the Report and Recommendation (Dkt. 92);

(3) The remaining claims are DISMISSED WITH PREJUDICE; 

(4) Clerk is directed to send copies of this Order to Plaintiff, and to the Hon. J. Kelley

Arnold.

DATED this 12th day of January, 2009.

AROBERT J. BRYAN

United States District Judge