(PC) Smith v. Calpia ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK SMITH, Case No. 2:24-cv-00117-KJM-JDP (PC) 12 Plaintiff, SCREENING ORDER FINDING THAT THE COMPLAINT FAILS TO STATE A 13 v. VIABLE CLAIM AND GRANTING LEAVE TO AMEND 14 CALPIA, et al., ECF No. 1 15 Defendants. ORDER GRANTING PLAINTIFF’S 16 APPLICATION TO PROCEED IN FORMA PAUPERIS AND DENYING HIS REQUEST 17 FOR APPOINTMENT OF COUNSEL 18 ECF Nos. 2 & 7 19 20 21 Plaintiff, a prisoner at California State Prison, Solano, brings this action against 22 defendants and alleges that they violated his Eighth Amendment rights by failing to conduct 23 inspections of a hot water hose that broke and caused him second degree burns. ECF No. 1 at 3. 24 These allegations, for the reasons stated below, do not state a cognizable federal claim. Plaintiff 25 will be given leave to amend. I will also grant his application to proceed in forma pauperis, ECF 26 No. 2, and deny his motion for appointment of counsel, ECF No. 7. 27 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 26 27 28 1 II. Analysis 2 Plaintiff alleges that he sustained second degree burns after a hot water hose broke and 3 spilled onto his skin. ECF No. 1 at 3. He has named three defendants, alleging that Jeffrey 4 Macomber, Andy Howell, and the California Prison Industry Authority (“CALPIA”) were 5 negligent in failing to inspect the hose and in failing to report his injury as serious to the 6 California Division of Occupational Safety and Health. Id. These allegations do not give rise to a 7 cognizable federal claim because negligence cannot support an Eighth Amendment claim. See 8 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The alleged failure to comply with state law 9 also fails to give rise to any federal claim. See Moreland v. Las Vegas Metro. Police Dep’t., 159 10 F.3d 365, 371 (9th Cir. 1998) (“[S]tate law violations do not, on their own, give rise to liability 11 under § 1983.”); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370-71 (9th Cir. 1996) 12 (“Section 1983 limits a federal court’s analysis to the deprivation of rights secured by the federal 13 Constitution and laws.”). 14 As such, the complaint cannot proceed. Plaintiff may file an amended complaint that 15 explains what, if any, federal basis exists for his claims. He is advised that the amended 16 complaint will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 17 n.1 (9th Cir. 2012) (en banc). The amended complaint should be titled “Amended Complaint” 18 and refer to the appropriate case number. 19 Motion to Appoint Counsel 20 I will deny plaintiff’s motion to appoint counsel. ECF No. 7. He does not have a 21 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 22 (9th Cir. 1997), and I lack the authority to require an attorney to represent him, see Mallard v. 23 U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). I can only 24 request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request 25 an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. 26 However, without a means to compensate counsel, I will seek volunteer counsel only in 27 exceptional circumstances. In determining whether such circumstances exist, “the district court 28 must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to 1 | articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 2 | F.3d at 1525 Gnternal quotation marks and citations omitted). In light of my screening order, I 3 | find that plaintiff has not demonstrated a likelihood of success on the merits, and I will deny his 4 | motion for counsel without prejudice. 5 Accordingly, it is ORDERED that: 6 1. Within thirty days from the service of this order, plaintiff must file an amended 7 | complaint that complies with this order. If he fails to do so, I will recommend that this action be 8 | dismissed for failure to state a claim. 9 2. The Clerk of Court shall send plaintiff a section 1983 complaint form with this order. 10 3. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is GRANTED. 11 4. Plaintiffs motion for appointment of counsel, ECF No. 7, is DENIED. 12 3 IT IS SO ORDERED. 14 ( 4 ie — Dated: _ May 6, 2024 Q——— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28