(PC) Singh v. California Substance Abuse Treatment Facility ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAVI KUMAR SINGH, No. 1:21-cv-00139-NONE-EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART; AND 13 v. DENYING MOTION FOR APPOINTMENT OF PRO BONO COUNSEL 14 CALIFORNIA SUBSTANCE ABUSE TREATMENT FACILITY, (Doc. Nos. 1, 11, 13) 15 Defendant. 16 17 18 Ravi Singh (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this 19 action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 20 § 636(b)(1)(B) and Local Rule 302. 21 On March 15, 2021, the assigned magistrate judge screened plaintiff’s complaint and 22 entered findings and recommendations, recommending that “[t]his action be dismissed” and that 23 “[t]he Clerk of Court be directed to close the case.” (Doc. No. 11 at 5.) The magistrate judge’s 24 reasoning was based in large part on the fact that plaintiff’s complaint, which generally alleged 25 medical negligence, did not allege how plaintiff was harmed by that alleged negligence, but 26 instead asserted potential harm to a third party, namely plaintiff’s cellmate. (See generally Doc. 27 No. 11.) 28 ///// 1 Plaintiff was provided an opportunity to file objections to the findings and 2 recommendations. Plaintiff filed his objections, along with a motion for appointment of pro bono 3 counsel, on March 29, 2021. (Doc. Nos. 12, 13.) In accordance with the provisions of 28 U.S.C. 4 § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed 5 the entire file, the court concludes that the magistrate judge’s findings and recommendations are 6 supported by the record and by proper analysis in almost all respects. Plaintiff does not take issue 7 with the reasoning contained within the findings and recommendations; rather, in his objections, 8 plaintiff argues that he did not mean to assert claims on behalf of his cellmate but rather that he 9 was providing an example of medical negligence. (Doc. No. 12.) Plaintiff indicates that his real 10 concern is that he was forced to work during the COVID-19 pandemic, even though he already 11 had health problems (including hepatitis C), and that he ended up contracting COVID-19. (Id.) 12 Plaintiff suggests that he provided allegations about these medical concerns. (Id.) The court has 13 carefully examined the record and concludes that none of the allegations asserted in the complaint 14 reveal any concerns relevant to plaintiff’s medical situation, but they do generally raise concerns 15 about COVID-19 and inadequate medical care. As a result, and in an abundance of caution, the 16 court will depart from the magistrate judge’s recommendations slightly and will grant plaintiff 17 leave to amend. 18 As to plaintiff’s motion for appointment of pro bono counsel, plaintiff does not have a 19 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 20 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), and the court 21 cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 22 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). 23 However, in certain exceptional circumstances the court may request the voluntary assistance of 24 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 28 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 1 | complexity of the legal issues involved.” Jd. (citation and internal quotation marks omitted). 2 The court has reviewed the record in this case, and at this time the court is unable at this 3 | time to determine that plaintiff is likely to succeed on the merits of his claim. Moreover, it 4 | appears from his filings that plaintiff can adequately articulate claims. The issue with plaintiffs 5 | claim at present is not that he failed to adequately articulate it, but that he brought a claim on 6 | behalf of his cellmate. Accordingly, the court will deny plaintiff's motion for appointment of pro 7 | bono counsel at this time without prejudice. 8 Accordingly, 9 1. The findings and recommendations issued on March 15, 2021, (Doc. No. 11), are 10 adopted in part; 11 2. Plaintiff’s complaint is dismissed with leave to amend!; 12 3. Plaintiff shall have forty-five (45) days from the date of this order to file any 13 amended complaint; and 14 4. Plaintiff's motion for appointment of pro bono counsel, (Doc. No. 13), is denied. 15 | IT IS SO ORDERED. _ - Dated: _ May 10, 2021 fe or 17 UNITED STATES DISTRICT JUDGE 18 19 20 | | Should plaintiff elect to continue to pursue this action by filing an amended complaint, he shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and 21 | the Local Rules of Practice. The Amended Complaint must bear the docket number assigned to 97 | this case and be labeled “Amended Complaint.” In any amended complaint he elects to file plaintiff must allege facts demonstrating how the conditions complained of resulted in a 23 | deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 24 | between a defendant's specific actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 > (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980); Johnson v. Duffy, 588 F.2d 740, 743 5 (9th Cir.1978). Vague and conclusory allegations of official participation in civil rights violations 26 | are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982). Finally, Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior 27 || pleading. The amended complaint will supersede the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Therefore, in an amended complaint, each claim and the involvement 28 | of each defendant must be sufficiently alleged.