Sittre v. Wilhelm ( 2021 )

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SHAWN RICHARD SITTRE a/k/a PRUETT, Case No. 1:21-cv-00098-BLW Plaintiff, SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE v. CASSANDRA WILHELM and RYAN LANGAN, Defendants. Plaintiff Shawn Richard Sittre is a prisoner proceeding pro se and in forma pauperis in this civil rights action. The Court previously reviewed Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915 and 1915A, determined that it failed to state a claim upon which relief could be granted, and allowed Plaintiff an opportunity to amend. See Initial Review Order, Dkt. 8. Plaintiff has now filed an Amended Complaint. See Dkt. 11. The Court retains its screening authority pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Having reviewed the Amended Complaint, the Court concludes that Plaintiff has failed to remedy the deficiencies in the initial Complaint, and the Court will dismiss this case pursuant to 28 U.S.C. §§ 1915 and 1915A. 1. Request for Appointment of Counsel Plaintiff seeks appointment of counsel. Am. Compl. at 5. Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id. Further, an attorney cannot be forced to represent an indigent litigant in a civil case—rather, the attorney can only be “appointed” if he or she voluntarily accepts the appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (holding that the appointment of counsel provision in § 1915, formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v. Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney to represent Plaintiffs pro bono.”). The legal issues in this matter are not complex, and Plaintiff has been able to file documents with the Court and protect his interests to date. In addition, as explained below, the Amended Complaint fails to state a claim upon which relief may be granted; therefore, Plaintiff does not have a likelihood of success on the merits. Accordingly, the Court will deny Plaintiff’s Motion for Appointment of Counsel. 2. Screening Requirement As explained in the Initial Review Order, the Court must dismiss a prisoner or in forma pauperis complaint—or any portion thereof—that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(d)(2) & 1915A(b). 3. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted). And, a court is not required to comb through a plaintiff’s exhibits or other filings to determine if the complaint states a plausible claim. 4. Discussion Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986). In the Initial Review Order, the Court explained that to state a plausible Eighth Amendment failure-to-protect claim, Plaintiff must offer facts from which a factfinder could draw a reasonable inference that Defendants knew of a substantial risk to Plaintiff’s safety yet deliberately disregarded that risk. Dkt. 8 at 6–9; see also Farmer v. Brennan, 511 U.S. 825, 834–35 (1994); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). The initial Complaint failed this standard because the facts alleged therein established, at most, that Defendants might have been negligent in failing to ensure that all prison gang members were secured and in their cells before Plaintiff was given the all-clear to return to his cell. Dkt. 8 at 10–11. The Amended Complaint suffers from the same problem. Its factual allegations simply do not give rise to a reasonable inference that Defendants acted with “a sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991). Rather, the “obvious alternative explanation” is that Defendants negligently failed to appreciate the risk posed to Plaintiff. Iqbal, 556 U.S. at 682. For the foregoing reasons, the Amended Complaint is subject to dismissal for failure to state a claim upon which relief may be granted. 5. Conclusion Although pro se pleadings must be liberally construed, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Because Plaintiff has already been given the opportunity to amend and still has failed to state a plausible claim for relief, the Court will dismiss the Amended Complaint with prejudice and without further leave to amend. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”). ORDER IT IS ORDERED: 1. Plaintiff’s Motion to Review the Amended Complaint (Dkt. 10) is GRANTED. 2. The Amended Complaint fails to state a claim upon which relief may be granted. Therefore, for the reasons stated in this Order and the Initial Review Order (Dkt. 8), this entire case is DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) & 1915A(b)(1). 3. Plaintiff's Amended Application to Proceed in Forma Pauperis (Dkt. 12) is DENIED AS MOOT. 4. Plaintiffs Motion for Default for Failure to Answer (Dkt. 14) is DENIED. ZS DATED: July 12, 2021 et it], piv USS. District Court Judge SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE - 6