(PC) Buckner v. Sacramento Police Dept. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL ONEIL BUCKNER, No. 2:23-cv-01723-TLN-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO POLICE DEPARTMENT, et al., 15 Defendants. 16 17 Plaintiff, a county jail inmate proceeding without counsel, commenced this action on 18 August 14, 2023. ECF No. 1. On September 5, 2023, plaintiff filed a second complaint, which 19 the court construes as an amended complaint superseding the original complaint. ECF No. 7. 20 Plaintiff has also filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 21 and a request for the appointment of counsel. ECF Nos. 8 & 9. The court will grant the in forma 22 pauperis application and screen the amended complaint. For the reasons set forth below, the 23 request to appoint counsel will be denied. 24 Leave to Proceed In Forma Pauperis 25 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 26 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 27 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 28 § 1915(b)(1) and (2). 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 //// 1 Screening Order 2 While plaintiff named four defendants in his original complaint, the amended complaint 3 does not name any defendants. ECF No. 7 at 1-2. Moreover, the prisoner civil rights complaint 4 form has been left blank as to claims, causes of action, administrative remedies, and relief sought. 5 Id. at 3-6. Instead of filling out the form, plaintiff has attached numerous pages of documents that 6 do not indicate who he is suing or on what grounds. Id. at 7-65. 7 Plaintiff’s complaint cannot survive screening because it violates Federal Rule of Civil 8 Procedure 8. A sufficiently plead complaint under Rule 8 must “put defendants fairly on notice 9 of the claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). The 10 amended complaint neither names any defendants nor makes clear what claims plaintiff is seeking 11 to bring against them. Nor does it contain a short and plain statement of specific allegations. 12 Further, the court notes that a claim is frivolous “when the facts alleged arise to the level 13 of the irrational or the wholly incredible, whether or not there are judicially noticeable facts 14 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Neitzke v. 15 Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when applied to a 16 complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual 17 allegation.”). In the absence of factual or legal support for any claim, plaintiff’s complaint 18 appears on its face to be frivolous. 19 Based on the foregoing, the court will dismiss plaintiff’s complaint. In an abundance of 20 caution, plaintiff will be given the opportunity to amend his complaint to cure the deficiencies 21 identified herein. 22 Leave to Amend 23 Plaintiff may choose to amend his complaint. He is cautioned that any amended 24 complaint must identify as a defendant only persons who personally participated in a substantial 25 way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 26 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 27 participates in another’s act or omits to perform an act he is legally required to do that causes the 28 alleged deprivation). Plaintiff may also include any allegations based on state law that are so 1 closely related to his federal allegations that “they form the same case or controversy.” See 28 2 U.S.C. § 1367(a). 3 The amended complaint must also contain a caption including the names of all defendants. 4 Fed. R. Civ. P. 10(a). 5 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 6 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring unrelated claims against 7 multiple defendants. Id. 8 Any amended complaint must be written or typed so that it so that it is complete in itself 9 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 10 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 11 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 12 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 13 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 14 1967)). 15 Any amended complaint should be as concise as possible in fulfilling the above 16 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 17 background which has no bearing on his legal claims. He should also take pains to ensure that his 18 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 19 and organization. Plaintiff should carefully consider whether each of the defendants he names 20 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 21 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 22 Motion to Appoint Counsel 23 Plaintiff requests that the court appoint counsel. District courts lack authority to require 24 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 25 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 26 to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 27 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 When determining whether “exceptional circumstances” exist, the court must consider the 1 || likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 2 || sein light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 3 | (9th Cir. 2009). As plaintiff has not filed a viable complaint, the court finds no exceptional 4 || circumstances in this case. 5 Conclusion 6 Accordingly, it is ORDERED that: 7 1. Plaintiff's application to proceed in forma pauperis (ECF No. 8) is GRANTED; 8 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 9 | in accordance with the notice to the Rio Consumnes Correctional Center filed concurrently 10 | herewith; 11 3. Plaintiff's amended complaint (ECF No. 7) is dismissed with leave to amend 12 | within 30 days of service of this order; 13 4. Plaintiff's motion to appoint counsel (ECF No. 9) is denied; and 14 5. Failure to comply with this order may result in dismissal of this action. on , jee 16 || Dated: November 27, 2023 Za 1 bet (LACH EDMUND F. BRENNAN 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28