(PC) Moore v. Butte County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND E. MOORE, JR., Case No. 2:22-cv-01517-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF 13 v. COUNSEL CONTAINED IN THE FIRST AMENDED COMPLAINT 14 BUTTE COUNTY, et al., SCREENING ORDER THAT PLAINTIFF: 15 Defendants. (1) STAND BY HIS COMPLAINT 16 SUBJECT TO A RECOMMENDATION OF 17 DISMISSAL OF CLAIMS OR PARTIES; 18 (2) FILE ANOTHER AMENDED 19 COMPLAINT 20 ECF No. 19 21 THIRTY-DAY DEADLINE 22 23 24 Plaintiff brings this section 1983 case against various defendants employed at the Butte 25 County Jail. ECF No. 19. For the reasons stated below, the complaint cannot proceed as 26 currently articulated. Additionally, I will deny plaintiff’s request for appointment of counsel that 27 is contained within his complaint. 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 II. Analysis 26 Plaintiff’s complaint is deficient because it does not explain how each of the six named 27 defendants (and at least eight unnamed defendants) was personally responsible for violating his 28 rights. For instance, the substance of plaintiff’s complaint alleges that “the Correctional Officers 1 and Medical Staff at Butte, after being advised of [plaintiff’s medical complaints] ignored safe 2 medical protocol.” ECF No. 19 at 9. Plaintiff also alleges that correctional and medical staff “did 3 not take obvious proper medical and safety precautions in dealing with petitioner’s medical 4 condition.” Id. The remainder of the complaint fails to distinguish between the alleged actions or 5 inactions of the individual defendants. Federal pleading standards are not high, but the complaint 6 must put each defendant on notice as to the claims against him or her.1 Austin v. Terhune, 367 7 F.3d 1167, 1171 (9th Cir. 2004). 8 Plaintiff may file an amended complaint that addresses this deficiency. He is advised that 9 the amended complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 10 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to 11 be complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. 12 Once an amended complaint is filed, the current complaint no longer serves any function. 13 Therefore, in an amended complaint, as in an original complaint, plaintiff will need to assert each 14 claim and allege each defendant’s involvement in sufficient detail. The amended complaint 15 should be titled “Second Amended Complaint” and refer to the appropriate case number. 16 Additionally, I will deny plaintiff’s request for appointment of counsel. ECF No. 19 at 17 13-14. Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 18 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to 19 represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 20 296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. § 21 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 22 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, I will seek 23 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 24 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 25 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 26 1 The complaint references several defendants by name but fails to explain how they 27 violated plaintiff’s constitutional rights. For instance, plaintiff alleges that on August 21, 2020, defendant Rayone gave him Acetaminophen. ECF No. 19 at 11. Plaintiff does not link this act to 28 the overall denial of care, however. 1 | involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 2 I cannot conclude that exceptional circumstances requiring the appointment of counsel are 3 | present here. The allegations in the complaint are not exceptionally complicated. Further, 4 | plaintiff has not demonstrated that he is likely to succeed on the merits. For these reasons, 5 | plaintiff's request to appoint counsel contained within the complaint is denied without prejudice. 6 I may revisit this issue at a later stage of the proceedings if the interests of justice so 7 | require. If plaintiff later renews his request for counsel, he should provide a detailed explanation 8 | of the circumstances that he believes justify appointment of counsel in this case. 9 Accordingly, it is ORDERED that: 10 1. Plaintiff's request for appointment of counsel is DENIED without prejudice. 11 2. Within thirty days from the service of this order, plaintiff may file an amended 12 | complaint. If he does not, I will issue findings and recommendations that the complaint be 13 | dismissed for failure to state a cognizable claim. 14 3. The Clerk of Court is directed to send plaintiff a complaint form. 15 16 IT IS SO ORDERED. 17 ( 1 Sy — Dated: _ April 24, 2023 q_—— 18 JEREMY D. PETERSON 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28