(PC) Lewis v. Moss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL DIXON LEWIS, No. 2:19-cv-1970-EFB P 12 Plaintiff, 13 v. ORDER 14 J.W. MOSS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. He 19 also moves for the appointment of counsel. ECF Nos. 3 & 9. 20 Leave to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Plaintiff’s complaint (ECF No. 1) asserts claims of “illegal incarceration.” Id. at 3, 4. It 26 alleges that a resentencing motion plaintiff filed in state court was either denied or no action was 27 taken on it, thereby prolonging his incarceration and violating his rights under the Eighth and 28 Fourteenth Amendments. Id. As part of his requested relief, plaintiff seeks compensation for 1 every day he has been illegally incarcerated. Id. at 6. Plaintiff has failed to state a viable section 2 1983 claim. 3 First, plaintiff’s allegations are too vague and ambiguous to support a claim under either 4 the Eighth or Fourteenth Amendments. And to the extent that any such claim, which if 5 successful, would necessarily undermine his current confinement, it is barred by Heck v. 6 Humphrey, 512 U.S. 477, (1994). Heck holds that if success in a section 1983 action would 7 implicitly question the validity of confinement or its duration, the plaintiff must first show that 8 the underlying conviction was reversed on direct appeal, expunged by executive order, declared 9 invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Muhammad v. 10 Close, 540 U.S. 749, 751 (2004). The complaint itself is premised on the allegation that no such 11 relief has been granted. 12 Second, to the extent plaintiff is requesting to be released from custody, his claim must be 13 brought in a habeas action. See Nettles v. Grounds, 830 F.3d 922, 927-931 (9th Cir. 2016) 14 (claims which would result in immediate release if successful fall within core of habeas corpus; 15 claims which would not necessarily affect the length of time to be served if successful fall outside 16 core of habeas corpus and must be brought, if at all, under § 1983). 17 Based on the foregoing, the court will dismiss plaintiff’s complaint with leave to amend. 18 Leave to Amend 19 Plaintiff may choose to amend his complaint. He is cautioned that any amended 20 complaint must identify as a defendant only persons who personally participated in a substantial 21 way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 22 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 23 participates in another’s act or omits to perform an act he is legally required to do that causes the 24 alleged deprivation). Plaintiff may also include any allegations based on state law that are so 25 closely related to his federal allegations that “they form the same case or controversy.” See 28 26 U.S.C. § 1367(a). 27 The amended complaint must also contain a caption including the names of all defendants. 28 Fed. R. Civ. P. 10(a). 1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring unrelated claims against 3 multiple defendants. Id. 4 Any amended complaint must be written or typed so that it so that it is complete in itself 5 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 6 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 7 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 8 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 9 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967)). 11 Any amended complaint should be as concise as possible in fulfilling the above 12 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 13 background which has no bearing on his legal claims. He should also take pains to ensure that his 14 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 15 and organization. Plaintiff should carefully consider whether each of the defendants he names 16 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 17 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 18 Motion for Appointment of Counsel 19 District courts may authorize the appointment of counsel to represent an indigent civil 20 litigant in certain exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 21 F.2d 1015, 1017 (9th Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); 22 Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional 23 circumstances exist, the court must evaluate (1) the plaintiff’s likelihood of success on the merits; 24 and (2) the ability of the plaintiff to articulate her claims pro se in light of the complexity of the 25 legal issues involved. Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s 26 likelihood of success, the complexity of the issues, or the degree of plaintiff’s ability to articulate 27 plaintiff’s claims amount to exceptional circumstances justifying the appointment of counsel at 28 this time. 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 5 || accordance with the notice to the California Department of Corrections and Rehabilitation filed 6 || concurrently herewith; 7 3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend within 30 days 8 || from the date of service of this order; 9 4. Plaintiffs motion for the appointment of counsel (ECF Nos. 3 & 9) is denied without 10 || prejudice; and 11 5. Failure to comply with this order may result in dismissal of this action. 12 | DATED: April 8, 2020. 13 Sg Yo bil, Lb Li Ai 14 EDMUND F. BRENNAN Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28