(PC) Clarke v. Shasta County Sheriffs Department ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LEE KELLY CLARKE, Case No. 2:21-cv-01399-JAM-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS AND DENYING HIS MOTION TO APPOINT COUNSEL 13 SHASTA COUNTY SHERIFF’S DEPT, et al., ECF Nos. 4 & 5 14 Defendants. SCREENING ORDER THAT PLAINTIFF: 15 (1) FILE AN AMENDED 16 COMPLAINT, OR 17 (2) STAND BY HIS COMPLAINT SUBJECT TO DISMISSAL 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 Plaintiff, proceeding without counsel, brings this civil rights action under 42 U.S.C. 22 § 1983. ECF No. 1. Plaintiff’s lengthy complaint is largely incomprehensible; it neither 23 complies with Rule 8 nor states a claim upon which relief can be granted. I will give plaintiff a 24 chance to amend before recommending that this action be dismissed. 25 I will grant plaintiff’s application to proceed in forma pauperis. ECF No. 4. 26 Plaintiff also moves for appointment of counsel. ECF No. 5. Plaintiff does not have a 27 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 28 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. See 1 Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The court can request 2 the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an 3 attorney to represent any person unable to afford counsel.”); Rand, 113 F.3d at 1525. However, 4 without a means to compensate counsel, the court will seek volunteer counsel only in exceptional 5 circumstances. In determining whether such circumstances exist, “the district court must evaluate 6 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 7 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 8 (internal quotation marks and citations omitted). 9 The court cannot conclude that exceptional circumstances requiring the appointment of 10 counsel are present here. The allegations in the complaint are, at best, difficult to comprehend 11 and plaintiff has not demonstrated that he is likely to succeed on the merits. Plaintiff’s motion to 12 appoint counsel, ECF No. 5, is denied without prejudice. 13 Screening and Pleading Requirements 14 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 15 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 16 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 17 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 18 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 19 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 20 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 21 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 22 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 23 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 24 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 25 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 26 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 27 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 28 n.2 (9th Cir. 2006) (en banc) (citations omitted). 1 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 2 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 3 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 4 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 5 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 6 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 7 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 8 Analysis 9 Plaintiff’s complaint does not comply with Rule 8 or state a claim upon which relief may 10 be granted. Rather than submitting a “short and plain statement” of his claims, plaintiff has filed 11 a complaint that consists of more than fifty pages of dense, hand-written allegations, much of 12 which is illegible. See generally ECF No. 1. The complaint purports to name more than one 13 hundred defendants but is devoid of allegations that the named defendants engaged in any 14 particular wrongful conduct. Id. Furthermore, many of the defendants either are not readily 15 ascertainable individuals or entities or appear to be unconnected to each another by a common 16 nucleus of facts. For instance, plaintiff’s list of defendants includes “US Treasury,” “Oath 17 Keepers,” “CA-State (ton) Attorneys,” and “Mrs. Christina Hoff-Sommers,” author of “The War 18 on Boyz.” Id. at 2-6. He does not state the grounds for the court’s jurisdiction or provide a 19 coherent demand for relief, as is required by Rule 8. See Fed. R. Civ. Pro. 8(a). 20 I will allow plaintiff a chance to amend his complaint before recommending that this 21 action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 22 will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th 23 Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 24 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 25 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 26 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 27 defendant’s involvement in sufficient detail. The amended complaint should be titled “First 28 Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 1 | amended complaint, I will recommend that this action be dismissed. 2 Accordingly, it is ORDERED that: 3 1. Plaintiffs application to proceed in forma pauperis, ECF No. 4, is granted. 4 2. Plaintiffs motion for appointment of counsel, ECF No. 5, is denied. 5 3. Within thirty days from the service of this order, plaintiff must either file an amended 6 | complaint or advise the court he wishes stand by his current complaint. 7 4. Failure to comply with this order may result in the dismissal of this action. 8 5. The clerk’s office is directed to send plaintiff a complaint form. 9 10 IT IS SO ORDERED. ll ( 4 ie — Dated: _ April 25, 2022 q_———. 12 JEREMY D. PETERSON B UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28