(PC) Mefford v. Bhutia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LEIGH MEFFORD, No. 2:18-cv-3117 EFB P 12 Plaintiff, 13 v. ORDER 14 BHUTIA, et al., 15 Defendants. 16 17 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 18 He has filed an application to proceed in forma pauperis (ECF No. 2) and a motion to appoint 19 counsel (ECF No. 3). 20 Application to Proceed In Forma Pauperis 21 The court has reviewed plaintiff’s application and finds that it makes the showing required 22 by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff’s request to proceed in forma pauperis is 23 granted. 24 Screening 25 I. Legal Standards 26 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 27 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 28 which relief may be granted, or seeks monetary relief against an immune defendant. 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint's allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 14 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 15 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 16 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 17 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 18 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 19 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 20 II. Analysis 21 Plaintiff has alleged two separate claims in his complaint. 22 First, he alleges that defendant Bhutia – the unit psychiatrist at the California Medical 23 Facility – ordered the administration of medication he was allergic to. ECF No. 1 at 7. He claims 24 that his allergy to the medication – “Thorozine” – was well documented and Bhutia should have 25 been aware of the impropriety of her prescription. Id. Plaintiff alleges that he was hospitalized 26 and suffered a “permanent impairment” as a consequence of the medication. Id. at 5, 7. Also 27 implicated in this claim are defendants Martinez and Smith. Plaintiff claims that Martinez – a 28 psychiatric technician – physically administered the shot ordered by Bhutia despite plaintiff’s 1 protestations that he was allergic. Id. at 8. Plaintiff alleges that Smith – a senior “MTA” – 2 pressured Bhutia to order the shots, though he does not specify how Smith did so. Id. at 9. 3 Second, plaintiff brings a separate claim for excessive force against defendant Heath – a 4 correctional officer. Id. Plaintiff claims that during a medical evaluation he became “frantic and 5 anxious” because Smith was advocating for the shots he was allergic to. Id. As a consequence, 6 he “stood up a little quick” and Heath responded by using “extreme force.” Id. Heath 7 purportedly slammed plaintiff head-first into a wall, causing him to lose consciousness. Id. 8 Heath subsequently applied his body weight to restrain plaintiff, but inadvertently suffocated 9 him.1 Id. 10 It is well settled that a claimant may not proceed with various unrelated claims against 11 separate defendants: 12 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross- 13 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the 14 party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be 15 joined with unrelated Claim B against Defendant 2.” 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The question of whether medical personnel 17 were deliberately indifferent in prescribing medication is separate – both legally and factually – 18 from the question of whether Heath used excessive force in restraining plaintiff during a medical 19 evaluation. Thus, these claims cannot be litigated jointly. 20 Plaintiff’s complaint will be dismissed with leave to amend so that he may correct the 21 foregoing deficiency. 22 III. Leave to Amend 23 Plaintiff is cautioned that any amended complaint must identify as a defendant only 24 persons who personally participated in a substantial way in depriving him of his constitutional 25 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 26 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 27 1 Plaintiff does not explain how he became aware of Heath’s subsequent actions if the 28 initial force used by Heath rendered him unconscious. 1 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 2 include any allegations based on state law that are so closely related to his federal allegations that 3 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 4 The amended complaint must also contain a caption including the names of all defendants. 5 Fed. R. Civ. P. 10(a). 6 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 7 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 8 multiple defendants. Id. 9 Any amended complaint must be written or typed so that it so that it is complete in itself 10 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 11 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 12 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 13 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 14 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967)). 16 Any amended complaint should be as concise as possible in fulfilling the above 17 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 18 background which has no bearing on his legal claims. He should also take pains to ensure that his 19 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 20 and organization. Plaintiff should carefully consider whether each of the defendants he names 21 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 22 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 23 Motion to Appoint Counsel 24 Plaintiff’s motion for appointment of counsel is denied. District courts lack authority to 25 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 26 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 27 attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. 28 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th 1 | Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 2 | consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate 3 | his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 4 | F.3d 965, 970 (9th Cir. 2009). At this stage, and having considered the foregoing factors, the 5 || court finds there are no exceptional circumstances in this case. 6 Conclusion 7 Accordingly, it is ORDERED that: 8 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 9 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 10 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 11 | concurrently herewith; 12 3. Plaintiffs motion for appointment of counsel (ECF No. 3) is DENIED; 13 4. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 days of 14 | service of this order; and 15 5. Failure to file an amended complaint that complies with this order may result in the 16 || dismissal of this action for the reasons stated herein. 17 | DATED: August 6, 2019. 18 Doolin 7 Sod 4 Ax 19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28