(PC)King v. Koenig ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KEVIN LYNELL KING, Case No. 2:21-cv-02250-TLN-JDP (PC) 11 Plaintiff, SCREENING ORDER THAT PLAINTIFF: 12 v. (1) STAND BY HIS AMENDED COMPLAINT SUBJECT TO A 13 CRAIG KOENIG, et al., RECOMMENDATION OF DISMISSAL; OR 14 Defendants. (2) FILE A SECOND AMENDED 15 COMPLAINT 16 ECF No. 18 17 THIRTY-DAY DEADLINE 18 ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 19 ECF No. 20 20 FINDINGS AND RECOMMENDATIONS 21 THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE 22 DENIED 23 ECF No. 19 24 FOURTEEN-DAY DEADLINE 25 26 27 Plaintiff, a state prisoner, alleges that defendants violated his Eighth Amendment rights by 28 failing to provide him with adequate medical care. His allegations are inadequately plead and, 1 moreover, do not appear sufficiently related to proceed in the same lawsuit. I will grant plaintiff 2 another opportunity to amend and remedy these deficiencies before recommending dismissal. I 3 will also deny plaintiff’s motion to appoint counsel, ECF No. 20, and recommend that his motion 4 for preliminary injunctive relief, ECF No. 19, be denied. 5 Screening Order 6 I. Screening and Pleading Requirements 7 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 8 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 9 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 10 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 11 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 12 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 13 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 14 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 15 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 17 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 18 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 19 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 20 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 21 n.2 (9th Cir. 2006) (en banc) (citations omitted). 22 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 23 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 24 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 25 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 26 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 27 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 28 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 1 II. Analysis 2 Plaintiff alleges that, between 2017 and 2021, various providers were deliberately 3 indifferent in failing to treat his keratoconus eye disorder. ECF No. 18 at 9-10. The complaint, 4 whose substantive portion is approximately twenty typed pages, does not, as Rule 8 of the Federal 5 Rules of Civil Procedure demands, provide a short and plain statement showing that plaintiff is 6 entitled to relief. Problematically, it is difficult to tell which parts of the complaint are being 7 offered as context and which contain active claims. Plaintiff alleges, for instance, that two 8 doctors—Rasheed and Ottenbacker—knowingly interfered with his medical treatment in 2018. 9 Id. at 10. These individuals are not named as defendants in the caption of the complaint, 10 however. 11 More broadly, the complaint contains too many disparate medical claims to litigate in a 12 single action. It is true that all the inadequate care appears to relate to plaintiff’s eye disorder, but 13 whether defendant Brignell was deliberately indifferent in April 2019 is a separate factual 14 question from whether defendant Yeh was deliberately indifferent two years later, in March of 15 2021. Litigating separate allegations of deliberate indifference in a single action will prove 16 unwieldy. The matter might be different if plaintiff were suing only one provider, but multiple, 17 unrelated claims against more than one defendant demand separate suits. 18 I will give plaintiff one final opportunity to amend his complaint to include only related 19 claims that are adequately pled. If plaintiff decides to file an amended complaint, the amended 20 complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 21 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to be 22 complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once 23 an amended complaint is filed, the current complaint no longer serves any function. Therefore, in 24 an amended complaint, as in an original complaint, plaintiff will need to assert each claim and 25 allege each defendant’s involvement in sufficient detail. The amended complaint should be titled 26 “Second Amended Complaint” and refer to the appropriate case number. If plaintiff does not file 27 an amended complaint, I will recommend that this action be dismissed. 28 1 2 Motion to Appoint Counsel 3 I will also deny plaintiff’s motion to appoint counsel, ECF No. 20. Plaintiff does not have 4 a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 5 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent plaintiff. See 6 Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). I may 7 request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request 8 an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. 9 However, without a means to compensate counsel, the court will seek volunteer counsel only in 10 exceptional circumstances. In determining whether such circumstances exist, “the district court 11 must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to 12 articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 13 F.3d at 1525 (internal quotation marks and citations omitted). 14 I cannot conclude that exceptional circumstances requiring the appointment of counsel are 15 present here. The allegations in the complaint are not exceptionally complicated. Further, 16 plaintiff has not demonstrated that he is likely to succeed on the merits. For these reasons, 17 plaintiff’s motion to appoint counsel, ECF No. 20, is denied without prejudice. 18 I may revisit this issue at a later stage of the proceedings if the interests of justice so 19 require. If plaintiff later renews his request for counsel, he should provide a detailed explanation 20 of the circumstances that he believes justify appointment of counsel in this case. 21 Motion for Temporary Restraining Order and Preliminary Injunction 22 I also recommend that plaintiff’s motion for injunctive relief, ECF No. 19, be denied. “A 23 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, 24 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 25 equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 26 555 U.S. 7, 20 (2008). The deficiency of plaintiff’s complaint precludes a showing that he is 27 likely to succeed on the merits of his claims. 28 1 2 Accordingly, it is ORDERED that: 3 1. Within thirty days from the service of this order, plaintiff must either file another 4 | Amended Complaint or advise me that he wishes to stand by his current complaint. If he selects 5 | the latter option, I will recommend that this action be dismissed. 6 2. Failure to comply with this order may result in the dismissal of this action. 7 3. The Clerk of Court is directed to send plaintiff a complaint form. 8 4. Plaintiffs motion to appoint counsel, ECF No. 20, is DENIED without prejudice. 9 Further, it is RECOMMENDED that plaintiff's motion for preliminary injunctive relief, 10 | ECF No. 19, be DENIED without prejudice. 11 I submit these findings and recommendations to the district judge under 28 U.S.C. 12 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 13 Eastern District of California. Within 14 days of the service of the findings and 14 | recommendations, any party may file written objections to the findings and recommendations 15 || with the court and serve a copy on all parties. That document should be captioned “Objections to 16 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 17 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 18 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 19 | 834, 839 (9th Cir. 2014). 20 IT IS SO ORDERED. 22 ( q Sty - Dated: _ September 8, 2022 q——— 23 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 25 26 27 28