(PC) Miles v. Garland ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE MILES, SR., No. 2:19-cv-01881 MCE CKD P 12 Plaintiff, 13 v. ORDER 14 DANIEL GARLAND, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner1 proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 1Plaintiff was recently transferred to Atascadero State Hospital after being housed in a state 28 prison and county jail in past years. (See ECF Nos. 1 & 20.) 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 II. Screening Standard 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989); Franklin, 745 F.2d at 1227. 16 In order to avoid dismissal for failure to state a claim a complaint must contain more than 17 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 18 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 19 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 21 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 22 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 23 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 24 at 678. When considering whether a complaint states a claim upon which relief can be granted, 25 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 26 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 27 U.S. 232, 236 (1974). 28 There are two problems with plaintiff’s complaint. First, plaintiff asserts claims of 1 unconstitutional excessive force, retaliation, and denial of access to the courts against eleven 2 individual defendants. The alleged events took place over a period of years and involved both 3 prison and county jail officials. (See generally ECF No. 1.) Fed. R. Civ. P. 18(a) provides: “A 4 party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party 5 claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or 6 maritime as the party has against an opposing party.” “Thus multiple claims against a single 7 party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B 8 against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims 9 against different defendants belong in different suits[.]” Id. 10 Second, plaintiff fails to allege in specific terms how each named defendant is involved in 11 the claimed violation of his rights. There can be no liability under 42 U.S.C. § 1983 unless there 12 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 13 Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official 14 participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 15 268 (9th Cir. 1982). 16 For these reasons, the complaint will be dismissed. However, plaintiff will have the 17 opportunity to file an amended complaint. 18 III. Leave to Amend 19 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 20 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 21 Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff is informed that the court cannot refer to a prior 22 pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that 23 an amended complaint be complete in itself without reference to any prior pleading. This is 24 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 25 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 26 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 27 original complaint, each claim and the involvement of each defendant must be sufficiently 28 alleged. 1 IV. Request for Counsel 2 Plaintiff has filed a third request that the court appoint counsel in this action. (ECF No. 19; 3 see ECF Nos. 14 & 18.) District courts lack authority to require counsel to represent indigent 4 prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). 5 In exceptional circumstances, the court may request an attorney to voluntarily represent such a 6 plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 7 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether 8 “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the 9 merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity 10 of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court 11 did not abuse discretion in declining to appoint counsel). The burden of demonstrating 12 exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such 13 as lack of legal education and limited law library access, do not establish exceptional 14 circumstances that warrant a request for voluntary assistance of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff has failed to 16 meet his burden of demonstrating exceptional circumstances warranting the appointment of 17 counsel at this time. 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 20 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 21 shall be collected and paid in accordance with this court’s order to the Director of the California 22 Department of Mental Health filed concurrently herewith. 23 3. Plaintiff’s third request for appointment of counsel (ECF No. 19) is denied. 24 4. Plaintiff’s complaint is dismissed. 25 5. Plaintiff is granted thirty days from the date of service of this order to file an amended 26 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 27 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 28 number assigned this case and must be labeled “Amended Complaint.” Failure to file an 1 | amended complaint in accordance with this order will result in a recommendation that this action 2 | be dismissed. 3 | Dated: April 1, 2020 Po Pg, fF /- it LE 9 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 || 2/miles1881. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28