(PC) Rosales v. Rios ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ROSALES, No. 2:21-cv-1758-EFB P 12 Plaintiff, 13 v. ORDER 14 L. RIOS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), he has filed an application to 19 proceed in forma pauperis (ECF Nos. 2 & 4) and a motion to appoint counsel (ECF No. 5). As 20 discussed below, the court grants his application to proceed in forma pauperis, denies his request 21 for counsel, and screens his complaint. 22 Application to Proceed In Forma Pauperis 23 The court has reviewed plaintiff’s application (ECF No. 8) and finds that it makes the 24 showing required by 28 U.S.C. § 1915(a)(1). Accordingly, by separate order, the court directs the 25 agency having custody of plaintiff to collect and forward the appropriate monthly payments for 26 the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 27 ///// 28 ///// 1 Motion to Appoint Counsel 2 District courts lack authority to require counsel to represent indigent prisoners in section 3 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 4 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 5 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 6 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 7 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 8 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 9 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 10 the court finds there are no exceptional circumstances in this case. 11 Screening 12 I. Legal Standards 13 Federal courts must engage in a preliminary screening of cases in which prisoners seek 14 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 15 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 16 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 17 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 18 relief.” Id. § 1915A(b). 19 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 20 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 21 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 22 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 23 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 24 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 25 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 26 U.S. 662, 679 (2009). 27 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 28 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 1 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 2 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 3 678. 4 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 5 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 8 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 9 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 10 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 11 II. Analysis 12 Plaintiff’s complaint (ECF No. 1) states a potentially viable claim of excessive force 13 against defendant correctional sergeant L. Rios, and defendant correctional officers F. Navarro 14 and M. Saeteurn. It also states a potentially viable First Amendment retaliation claim against 15 defendant Rios. 16 Plaintiff also purports to bring a claim based on the allegation that the defendants issued a 17 false rules violation report against him, resulting in a loss of credits, and thereby “increasing [the] 18 time of [plaintiff’s] incarceration.” Id. at 5. So long as plaintiff received the process he was due 19 during the rules violation proceedings, a false allegation, without more, is not sufficient to state a 20 claim of constitutional injury under the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 21 711-12 (1976). Even if it were, the claim would be barred by Heck v. Humphrey, 512 U.S. 477, 22 (1994). Heck holds that if success in a section 1983 action would implicitly question the validity 23 of confinement or its duration, the plaintiff must first show that the underlying conviction was 24 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or 25 questioned by the grant of a writ of habeas corpus. Muhammad v. Close, 540 U.S. 749, 751 26 (2004). Plaintiff has not alleged that the determination of guilt was reversed or that the loss of 27 credits has been restored. Thus, if plaintiff were to succeed on this claim, it would call into 28 question the validity of his confinement and its duration. As a general rule, a challenge in federal 1 court to the fact of conviction or the length of confinement must be raised in a petition for writ of 2 habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). 3 For these reasons, plaintiff may either proceed only on the potentially cognizable 4 excessive force claims against defendants Rios, Navarro and Saeteurn and the First Amendment 5 retaliation claim against defendant Rios or he may amend his complaint to attempt to cure the 6 complaint’s deficiencies. Plaintiff is not obligated to amend his complaint. 7 Leave to Amend 8 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. 9 Any amended complaint must identify as a defendant only persons who personally participated in 10 a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 11 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if 12 he does an act, participates in another’s act or omits to perform an act he is legally required to do 13 that causes the alleged deprivation). Plaintiff is not obligated to file an amended complaint. 14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 15 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 16 Any amended complaint must be written or typed so that it so that it is complete in itself 17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967)). 23 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 24 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 25 See E.D. Cal. L.R. 110. 26 ///// 27 ///// 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff's application to proceed in forma pauperis (ECF Nos. 2 & 4) is granted. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. Plaintiff's motion to appoint counsel (ECF No. 5) is denied without prejudice. 8 4. Plaintiff's complaint alleges, for screening purposes, potentially cognizable 9 excessive force claims against defendants Rios, Navarro, and Saeteurn and a 10 potentially cognizable First Amendment retaliation claim against defendant Rios. 11 5. All other claims are dismissed with leave to amend within 30 days from the date of 12 service of this order. Plaintiff is not obligated to amend his complaint. 13 6. Within thirty days plaintiff shall return the notice below advising the court whether 14 he elects to proceed with the cognizable claim or file an amended complaint. If 15 the former option is selected and returned, the court will enter an order directing 16 service at that time; 17 7. Failure to comply with any part of this this order may result in dismissal of this 18 action. 19 | Dated: November 8, 2021. ou by Z ZS , Mm 4 20 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 MIGUEL ROSALES, No. 2:21-cv-1758-EFB P 9 Plaintiff, 10 v. NOTICE 11 L. RIOS, et al., 12 Defendants. 13 14 In accordance with the court’s Screening Order, plaintiff hereby elects to: 15 16 (1) ______ proceed only with the excessive force claims against defendants Rios, 17 Navarro, and Saeteurn and the First Amendment retaliation claim against defendant Rios; 18 19 20 OR 21 22 (2) ______ delay serving any defendant and file an amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28