(PC) Cain v. Paviglianti ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LAMONT CAIN, No. 2:20-cv-1768-JDP P 12 Plaintiff, 13 v. ORDER 14 B. PAUIGLIATI, et al., 15 Defendants. 16 17 Plaintiff is a federal prisonerproceeding without counsel in an action brought under 28 18 U.S.C. § 1331. In addition to filing a complaint (ECF No. 1), he has filed an application to 19 proceed in forma pauperis (ECF No. 2) and tworequests for appointment of counsel (ECF Nos. 3 20 & 5). 21 Application to Proceed in Forma Pauperis 22 The court has reviewed plaintiff’s application and finds that it makes the showing required 23 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 24 having custody of plaintiffto collect and forward the appropriate monthly payments for the filing 25 fee as set forth in 28 U.S.C. §§ 1915(b)(1) and (2). 26 Screening Standards 27 Federal courts are required to screen cases in which prisoners seek redress from a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1 § 1915A(a). The court must dismiss anycomplaint, or portion thereof,that “is frivolous, 2 malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief 3 from a defendant who is immune from such 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 plainstatement 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, 562-63 (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 Twomblyand 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 555-57. In other words, “[t]hreadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements do not suffice.” Iqbal,556 U.S. at 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal,556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus,551 U.S. 89(2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Screening Order 24 Plaintiff’s complaint is plainly deficient insofar as it attempts to bring multiple, unrelated 25 claims against multiple defendants. That is, plaintiff purports to bring all of the following claims 26 in this action: (1)a November 9, 2019 religious discrimination claim against defendants Ballard 27 and Hatton; (2)a December 4, 2019 excessive force claim against defendants Pauigliati and 28 Gonzales; (3) a January 11, 2020 verbal sexual assault claim against defendant Cervantes; (4) a 1 January 28, 2020 excessive force claim against defendant Pauigliati; (5) a January 29, 2020 and 2 February 11, 2020 due process claim against defendants Futrell and Figueroa-Price; (6)a 3 February 11, 2020 retaliation claim against defendant Alatary; (7) a February 12, 2020 mail 4 interreference claim against defendants Waembrodt and Baker; and (8) a November 15, 2020 5 mail interference claim against defendants Nimmos and Potichkin. Aclaimant may not proceed 6 with various unrelated claims against separate defendants: 7 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross- 8 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the 9 party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be 10 joined with unrelated Claim B against Defendant 2.” 11 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff’s claims encompass discrete events 12 involving separate defendants that are ill-suited to proceed in a single suit. Indeed, most subsets 13 of allegations pose entirely separate questions—both legally and factually—from the others. 14 Plaintiff’s complaint will be dismissed with leave to amend. 15 Leave to Amend 16 Plaintiff is cautioned that any amended complaint must identify as a defendant only 17 persons who personally participated in a substantial way in depriving him of his constitutional 18 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (explaining that a person subjects 19 another to the deprivation of a constitutional right if he does an act, participates in another’s act or 20 omits to perform an act he is legally required to do that causes the alleged deprivation). Plaintiff 21 may include any allegations based on state law that are so closely related to his federal allegations 22 that “they form the same case or controversy.” See28 U.S.C. § 1367(a). The amended complaint 23 must contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may 24 not change the nature of this suit by alleging new, unrelated claims,see George, 507 F.3d at 607, 25 and hemay not bring unrelated claims against multiple defendants. Id. 26 Any amended complaint must be written or typed so that it so that it is complete inand of 27 itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an 28 amended complaint supersedes any earlier filed complaint, and once an amended complaint is 1 filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. 2 Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (“[The] ‘amended complaint supersedes the 3 original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 4 57 (9th Cir. 1967)). 5 Any amended complaint should be as concise as possible whilemeetingthe above 6 requirements. Fed. R. Civ. P. 8(a). Plaintiff should not include procedural or factual background 7 that has no bearing on his legal claims. He should also take pains to ensure that his amended 8 complaint is as legible as possible, considering not onlypenmanship but also spacing and 9 organization. Plaintiff should consider whether each of the defendants he names actually had 10 involvement in the constitutional violations he alleges. A “scattershot” approach in which 11 plaintiff names dozens of defendants will not be looked upon favorably by the court. 12 Request for Counsel 13 Plaintiff requests the appointment of counsel. District courts lack authority to require 14 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 15 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may askan attorney to 16 voluntarily represent such a plaintiff. See28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 17 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 18 When determining whether “exceptional circumstances” exist, the court must consider the 19 likelihood of success on the merits as well as the ability ofthe plaintiff to articulate his claims pro 20 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 21 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional 22 circumstances in this case. 23 Accordingly, it is ORDERED that: 24 1. Plaintiff’s applicationto proceed in forma pauperis (ECF No. 2) is granted. 25 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 26 in accordance with the notice to the Federal Bureau of Prisons filed concurrently 27 herewith. 28 3. Plaintiff’s requests for appointment of counsel (ECF Nos. 3& 5)aredenied. wAOe 2 OU EEMOTV RAT MMU BPC NI er PY VI 1 4. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 days 2 of service of this order. 3 5. Failure to comply with any part of this this order may result in dismissal of this 4 action. 5 | DATED: October 6, 2020 2 Qo ; STATE GISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28