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Demos v United States

United States District Court, D. North Dakota

February 21, 2019

John Robert Demos, Jr., Plaintiff,
v.
The United States, et. al., Defendants.

          ORDER OF DISMISSAL

          Clare R. Hochhalter, Magistrate Judge United States District Court

         On February 4, 2019, the plaintiff, John Robert Demos, Jr. (“Demos”) filed the following: (1) a “Motion for Relief from the 1-23-2019 Directive of the Clerk of Court;” (2) a “Motion for Review of a Constitutional Issue;” (3) a motion for leave to proceed in forma pauperis; and (4) a motion for appointment of counsel. On February 19, 2019, he filed notice of his consent to the magistrate' judge's exercise of jurisdiction and motion to amend the pleadings. For the reasons set forth below, the “Motion for Relief for the 1-23-2019 Directive of the Clerk of Court” is deemed moot, the motions for appointment of counsel and for leave to proceed in forma pauperis, are denied, and the above-entitled action is dismissed without prejudice.

         I. BACKGROUND

         Demos is incarcerated in the Monroe Correctional Complex in Monroe, Washington. He initiated the above-entitled action on January 23, 2019, with the submission of a “PLRA packet.” The “PLRA packet” contained a “Motion and Petition for Review of a Constitutional Crisis” in which Demos asserted: (1) the United States Constitution discriminates on the basis of gender by virtue of the fact that it is devoid of any female pronouns; (2) Article III of the United States Constitution is “impermissibly and unconstitutionally vague;” (3) Article III and the Sixth Amendment to the United States Constitution “conflict and clash;” and (4) sections of Article I and III of the United States Constitution “are unconstitutionally and impermissibly vague as to the types of punishment that can be imposed if peached and convicted, and if one is convicted of treason.” (Doc. No. 5).

         On January 23, 2019, the Clerk's office sent a request to Demos to complete his “PLRA packet” as the one he had submitted was missing, amongst other things, requests for waivers of service of summonses and either the civil filing fee or motion for leave to proceed in forma pauperis.

         On February 4, 2019, Demos filed a “Motion for Review of a Constitutional Issue, ” a motion for leave to proceed in forma pauperis, and motion for court-appointed counsel. He also filed a “Motion for Relief from the 1-23-2019 Directive of the Clerk of Court.” That same day the Clerk's office filed Demos' “PLRA packet.”

         On February 19, 2019, Demos filed notice of his consent to the magistrate judge's exercise of jurisdiction. He also filed a “Motion to Amend the Complaint.”

         II. DISCUSSION

         A. “Motion for Relief from the 1-23-2019 Directive of the Clerk of Court”

         The motion for relief from the Clerk of Court's directive (Doc. No. 2) to complete the “PLRA packet” is deemed MOOT as the Clerk's office has filed Demos' “PLRA packet.” Demos' motion for court-appointed counsel is denied.

         B. Motion for Appointment of Counsel

         Indigent civil litigants do not have a constitutional or statutory right to appointed counsel let alone the appointment of their choice of counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). The court “may request an attorney to represent any person unable to afford counsel” and has considerable discretion when deciding whether to do so. Id. at 924-43 (quoting 28 U.S.C. § 1915(e)(1)). Several factors are relevant when deciding whether to appoint counsel, including “the factual complexity of the case, the ability of the indigent to investigate the facts, the existence of conflicting testimony, the ability of the indigent to present his claim and the complexity of the legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991). Appointment of counsel should be given serious consideration if the plaintiff has not alleged a frivolous or malicious claim. Id.

         Having reviewed the record while keeping in mind the factors identified by the Eighth Circuit in Abdullah, I find that appointment of counsel is not warranted as Demos' claims that the United States Constitution ...


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