(PC) Vega v. Menchaca ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL LOUIS VEGA, 1:18-cv-00568-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 vs. MOTION FOR APPOINTMENT OF COUNSEL BE DENIED AND THIS CASE 14 V. MENCHACA, et al., BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 15 Defendants. (ECF No. 11.) 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 18 19 I. PROCEDURAL HISTORY 20 Angel Louis Vega (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. On April 16, 2018, Plaintiff filed the 22 Complaint commencing this action. (ECF No. 1.) On December 17, 2018, the court screened 23 the Complaint and issued an order dismissing the Complaint for failure to state a claim, with 24 leave to amend. (ECF No. 10.) On January 7, 2019, Plaintiff filed the First Amended Complaint, 25 which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 11.) 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 6 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 12 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 14 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 15 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 17 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 18 plausibility standard. Id. 19 III. FIRST AMENDED COMPLAINT 20 A. Motion for Appointment of Counsel 21 In the First Amended Complaint, Plaintiff requests the appointment of counsel. (ECF No. 22 11 at 3, 5.) 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 25 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 26 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 27 circumstances the court may request the voluntary assistance of counsel pursuant to section 28 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. 7 Plaintiff contends that he needs legal representation because he has been a part of Mental Health 8 Services since 2003, and takes medication. These conditions do not make Plaintiff’s case 9 exceptional under the law. 10 The court has determined that Plaintiff is unlikely to succeed on the merits. By this order 11 the court shall recommend that this case be dismissed for failure to state a claim, without leave 12 to amend. The court has not found any cognizable claims in Plaintiff=s Complaint, nor in the 13 Amended Complaint, with which to initiate service of process. Although Plaintiff demonstrated 14 in the original Complaint that he can adequately articulate his claims (ECF No. 10), he fails to 15 state any allegations or claims in the First Amended Complaint. Therefore, Plaintiff=s motion 16 for appointment of counsel should be denied. 17 B. Plaintiff’s Allegations and Claims 18 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 19 in Corcoran, California, where the events at issue in the First Amended Complaint allegedly 20 occurred. Plaintiff names as defendants, Armenta (Supervisor Cook), Jose Mendoza (Lead 21 Cook), Noriega Irinco (Lead Cook), Correctional Officers (C/O) Davis, and C/O Cruz. 22 It appears that Plaintiff has changed the nature of the complaint, which is not permitted. 23 Plaintiff was advised in the court’s prior screening order that “‘although he has been given the 24 opportunity to amend, it is not for the purpose of changing the nature of this suit or adding 25 unrelated claims.’ George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 26 complaints).” (ECF No. 10 at 13:12-14.) The defendants named in the First Amended Complaint 27 (Armenta, Mendoza, Irinco, Davis, and Cruz) are entirely different from the defendants named 28 /// 1 in the original Complaint (Menchaca, Martinusen, Palafox, and Burden). Plaintiff makes no 2 explanation for this discrepancy. 3 Furthermore, Plaintiff makes no allegations whatsoever in the First Amended Complaint. 4 The First Amended Complaint contains only a list of defendants and a request for appointment 5 of counsel. Plaintiff was previously advised that to state a claim under section 1983, a plaintiff 6 must allege that (1) the defendant acted under color of state law and (2) the defendant deprived 7 him or her of rights secured by the Constitution or federal law. Long, 442 F.3d at 1185; see also 8 Marsh, 680 F.3d at 1158. To state a viable claim, Plaintiff must set forth “sufficient factual 9 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 10 at 678-79; Moss, 572 F.3d at 969. Plaintiff has not done so. Accordingly, the First Amended 11 Complaint should be dismissed for failure to state a claim. 12 IV. CONCLUSION AND RECOMMENDATIONS 13 For the reasons set forth above, the court finds that Plaintiff fails to state a claim upon 14 which relief may be granted in the First Amended Complaint. Therefore, it is recommended that 15 the First Amended Complaint be dismissed, with prejudice. 16 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 17 leave to amend when justice so requires.” Here, the court previously granted Plaintiff leave to 18 amend the complaint, with ample guidance by the court, and Plaintiff has now filed two 19 complaints without stating any claims upon which this case can proceed. The court is persuaded 20 that Plaintiff is unable to prepare and submit a complaint in compliance with the court’s 21 directives. “A district court may deny leave to amend when amendment would be futile.” 22 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the deficiencies 23 outlined above are not capable of being cured by amendment, and therefore further leave to 24 amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 25 1127 (9th Cir. 2000). 26 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 27 1. Plaintiff’s motion for appointment of counsel be DENIED; 28 2. This case be DISMISSED, with prejudice, for Plaintiff’s failure to state a claim 1 upon which relief may be granted; and 2 3. The Clerk be directed to CLOSE this case. 3 These findings and recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 of the date of service of these findings and recommendations, Plaintiff may file written objections 6 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 8 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, 9 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 10 Cir. 1991)). 11 IT IS SO ORDERED. 12 13 Dated: October 2, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28