(PC) Gray v. Cassie ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST GRAY, Case No. 2:22-cv-00099-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS AND DENYING PLAINTIFF’S MOTION FOR COUNSEL 14 CASSIE, et al., ECF Nos. 2 & 7 15 Defendants. SCREENING ORDER THAT PLAINTIFF: 16 (1) STAND BY HIS COMPLAINT 17 SUBJECT TO A RECOMMENDATION THAT IT BE 18 DISMISSED, OR 19 (2) FILE AN AMENDED COMPLAINT 20 ECF No. 1 21 THIRTY-DAY DEADLINE 22 23 Plaintiff Forrest Gray is a state prisoner proceeding without counsel in this civil rights 24 action brought under 42 U.S.C. § 1983. He alleges that prison nurse Daniel Cassie sexually 25 assaulted him during an examination and that sergeant J. Duenas failed to report the assault and to 26 take other appropriate actions. ECF No. 1. His allegations appear to be unexhausted; thus, I 27 recommend dismissing this complaint with leave to amend. 28 1 I will grant plaintiff’s application to proceed in forma pauperis. ECF No. 2. 2 Plaintiff has moved for the appointment of counsel. ECF No. 7. Plaintiff does not have a 3 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 4 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. See 5 Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The court can request 6 the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an 7 attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. But without 8 a means to compensate counsel, the court will seek volunteer counsel only in exceptional 9 circumstances. In determining whether such circumstances exist, “the district court must evaluate 10 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 11 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 12 (internal quotation marks and citations omitted). 13 Having considered these factors, the court does find not that there are exceptional 14 circumstances warranting appointment of counsel. Plaintiff’s motion is therefore denied. 15 Screening and Pleading Requirements 16 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 17 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 18 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 19 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 20 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 21 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 22 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 23 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 24 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 26 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 27 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 28 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 1 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 2 n.2 (9th Cir. 2006) (en banc) (citations omitted). 3 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 4 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 5 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 6 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 7 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 8 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 9 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 10 Analysis 11 Plaintiff alleges that on June 3, 2019, he had an appointment with registered nurse Cassie 12 for his arthritis. ECF No. 1 at 5. He alleges that during the visit, Cassie forcefully pulled at his 13 waistband, grabbed his penis, and fondled his testicles—which was not done as part of the 14 medical examination. Id. at 3-5. Plaintiff claims that the assault has caused him nightmares and 15 emotional and physical distress. Id. at 5. Later that day, he informed a correctional custody staff 16 officer of the assault, who in turn relayed the information to segreant J. Duenas. Id. at 4. Plaintiff 17 alleges that Duenas did not report the incident or notify the hiring authority, as required by prison 18 regulations and the Prison Rape Elimination Act (“PREA”). Id. 19 While plaintiff has alleged facts sufficient to state a cognizable Eighth Amendment claim 20 against Cassie, see Wood v. Beauclair, 692 F.3d 1041, 1045 (9th Cir. 2012), it appears that he has 21 not exhausted his administrative remedies. “The Prison Litigation Reform Act of 1995 . . . 22 mandates that an inmate exhaust ‘such administrative remedies as are available’ before bringing 23 suit to challenge prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. 24 § 1997e(a)). The availability of administrative remedies must be assessed as of the time when the 25 prisoner filed his action. See Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017). Although 26 dismissal of a prisoner civil rights action for failure to exhaust administrative remedies must 27 generally be decided pursuant to a motion for summary judgment, see Albino v. Baca, 747 F.3d 28 1162 (9th Cir. 2014), a court can also dismiss a case at screening “[i]n the rare event that a failure 1 to exhaust is clear on the face of the complaint,” id. at 1166. See also Medina v. Sacramento City 2 Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) 3 (“When it is clear from the face of the complaint and any attached exhibits that a plaintiff did not 4 exhaust his available administrative remedies before commencing an action, the action may be 5 dismissed on screening.”). 6 Plaintiff admits that he has not exhausted his administrative remedies for the claims at 7 issue. ECF No. 1 at 3-5 (checking the boxes for “No” in response to the questions, “Did you 8 appeal your request for relief on Claim I to the highest level?”). Exhaustion must occur prior to 9 filing suit and a plaintiff cannot exhaust while the suit is pending. McKinney v. Carey, 311 F.3d 10 1198, 1199-1201 (9th Cir. 2002). His is bare statement that his appeal is “pending” is insufficient 11 to excuse a failure to exhaust. 12 If a court concludes that a prisoner failed to exhaust his available administrative remedies 13 before filing a civil rights action, the proper remedy is dismissal without prejudice. See Jones, 14 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). Before 15 recommending dismissal, however, I will give plaintiff leave to amend his complaint. If he files 16 an amended complaint, he should confirm whether he has exhausted his administrative remedies. 17 If he has not, he should allege why, if at all, this action should proceed. 18 Plaintiff similarly appears to have failed to exhaust his claim against Duenas, and as 19 alleged, that claim is not cognizable. As a threshold matter, plaintiff cannot rely on PREA to 20 maintain a claim because the law does not create a private cause of action. Grindling v. Diana, 21 No. 16-00424 ACK-KJM, 2016 WL 6080825, at *3 (D. Haw. Sept. 12, 2016). Further, plaintiff 22 has not alleged how Duenas’ violated his constitutional rights. If this claim is to proceed, 23 plaintiff must include allegations sufficient to give Duenas notice of how he or she allegedly 24 violated plaintiff’s rights. 25 If plaintiff stands by his complaint, I will recommend that this action be dismissed. If 26 plaintiff decides to file an amended complaint, the amended complaint will supersede the current 27 complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This 28 means that the amended complaint will need to be complete on its face without reference to the 1 | prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint has been filed, the 2 | current complaint no longer serves any function. Therefore, in an amended complaint, as in an 3 | 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 “First Amended 5 | Complaint” and refer to the appropriate case number. 6 Accordingly, it is ORDERED that: 7 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, is granted. 8 2. Plaintiffs motion for appointment of counsel, ECF No. 7, is denied. 9 3. Within thirty days from the service of this order, plaintiff must either file an amended 10 | complaint or advise the court he wishes stand by his current complaint. If he selects the latter 11 | option, I will recommend that this action be dismissed. 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: _ April 25, 2022 q_-—_— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28