(PC) Gray-Garrigus v. Margrini ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BILLY JOE GRAY-GARRIGUS, Case No. 2:21-cv-00706-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 SHASTA COUNTY JAIL, et al., ECF No. 2 14 Defendants. ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 15 ECF No. 3 16 SCREENING ORDER THAT PLAINTIFF: 17 (1) FILE AN AMENDED 18 COMPLAINT; OR 19 (2) NOTIFY THE COURT THAT HE WISHES TO STAND BY HIS 20 COMPLAINT, SUBJECT TO DISMISSAL OF CLAIMS AND 21 DEFENDANTS 22 ECF No. 1 23 SIXTY-DAY DEADLINE 24 25 Plaintiff Billy Joe Gray-Garrigus is a Shasta County Jail inmate who alleges that he 26 contracted Covid-19 after jail staff refused to provide him with cleaning supplies. ECF No. 1 at 27 2. The complaint does not state a cognizable claim, but I will give plaintiff leave to amend. 28 Plaintiff has also filed an application to proceed in forma pauperis, ECF No. 2, which makes the 1 proper showing and is granted. 2 I will deny plaintiff’s motion to appoint counsel, ECF No. 3, without prejudice. He argues 3 that he is unable to afford counsel and that the issues in this case are complex. Plaintiff does not 4 have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 5 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent 6 plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 7 (1989). In determining whether circumstances warranting appointment of counsel exist, “the 8 district court must evaluate both the likelihood of success on the merits [and] the ability of the 9 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” 10 Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). I cannot conclude that 11 exceptional circumstances requiring the appointment of counsel are present here. The allegations 12 in the complaint are not exceptionally complicated, and plaintiff has not demonstrated, at this 13 point, that he is likely to succeed on the merits. 14 Screening and Pleading Requirements 15 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 16 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 17 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 18 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 19 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 20 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 21 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 22 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 23 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 25 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 26 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 27 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 28 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 1 n.2 (9th Cir. 2006) (en banc) (citations omitted). 2 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 3 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 4 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 5 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 6 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 7 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 8 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 9 Analysis 10 Plaintiff alleges that, in February 2021, he was housed with a cellmate who had Covid-19. 11 ECF No. 1 at 2. He asked unnamed guards at the jail for cleaning supplies to reduce his risk of 12 infection, but was told that “they would get around to it” and otherwise ignored. Id. Plaintiff 13 alleges that he eventually contracted Covid-19 because of the guards’ failure to provide him with 14 the supplies. Id. He alleges that defendant Margrini is responsible for authoring the jail’s 15 procedures and that defendants Marlar and Randall are responsible for ensuring that the 16 procedures are followed. Id. The complaint does not allege that the guards’ refusal to provide 17 cleaning supplies was driven by policy, however. To proceed, plaintiff must draw a more explicit 18 connection between Margrini’s policies, Marlar and Randall’s implementation of those policies, 19 and his injury. Plaintiff is also advised that the Shasta County Jail itself is not a viable defendant 20 in a section 1983 action. See Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) 21 (“Section 1983 imposes liability on any ‘person’ who violates someone's constitutional rights 22 ‘under color of law.’ Cook County Jail is not a ‘person.’”); Vance v. County of Santa Clara, 928 23 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an 24 appropriate means of pleading a § 1983 action against a municipality.”) (citation omitted). 25 I will give plaintiff leave to amend his complaint before recommending dismissal of this 26 action. If plaintiff decides to file an amended complaint, the amended complaint will supersede 27 the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 28 banc). This means that the amended complaint will need to be complete on its face without 1 | reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 2 | filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 3 | as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 4 | involvement in sufficient detail. The amended complaint should be titled “Amended Complaint” 5 | and refer to the appropriate case number. If plaintiff does not file an amended complaint, I will 6 | recommend that this action be dismissed. 7 Accordingly, it is ORDERED that: 8 1. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is granted. 9 2. Plaintiff's motion to appoint counsel, ECF No. 3, is denied without prejudice. 10 3. Within sixty days from the service of this order, plaintiff must either file an 11 | Amended Complaint or advise the court he wishes stand by his current complaint. 12 4. Failure to comply with this order may result in the dismissal of this action. 13 5. The clerk’s office is directed to send plaintiff a complaint form. 14 1s IT IS SO ORDERED. 16 | q Sty — Dated: _ May 10, 2021 q_-—_— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28