7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
ANDREW DAVID BRUINS, II, Case No.: 19cv1278 11 CDCR #K-70839, ORDER: 12 Plaintiff, 1) GRANTING MOTION TO 13 AMEND COMPLAINT; vs. 14
2) DIRECTING CLERK OF COURT TO FILE THIRD 15 AMENDED COMPLAINT; M. WHITMAN, Associate Warden; 16 A. ACEVEDO, Facility Captain, 3) DENYING MOTION FOR APPOINTMENT OF 17 Defendants. COUNSEL; AND 18 4) DISMISSING THIRD AMENDED COMPLAINT FOR 19 FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 20 1915(e)(2) AND 28 U.S.C. § 1915A(b) 21 (ECF Nos. 10, 12) 22 23 I. PROCEDURAL HISTORY 24 On July 10, 2019, Andrew David Bruins (“Plaintiff”), a prisoner incarcerated at 25 Calipatria State Prison (“CAL”) located in Calipatria, California, and proceeding pro se, 26 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) In addition, 27 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (See ECF No. 2.) 1 On July 22, 2019, the Court conducted the required sua sponte screening of 2 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (See ECF No. 4.) 3 In the Court’s July 22, 2019 Order, the Court granted Plaintiff’s IFP status but 4 simultaneously dismissed his Complaint for failing to state a claim upon which § 1983 5 relief could be granted. (See id. at 8–9.) The Court informed Plaintiff of the deficiencies 6 in his pleading and granted him leave to file an amended complaint. (See id. at 8.) On 7 August 29, 2019, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF No. 6.) 8 However, the Court again found Plaintiff failed to state a claim and dismissed his FAC 9 with leave to file another amended complaint. (See ECF No. 7 at 6–7.) 10 On November 25, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). 11 (See ECF No. 8.) However, before the Court could conduct the required sua sponte 12 screening, Plaintiff filed a “Motion to Amend Complaint,” along with a proposed amended 13 complaint. (ECF Nos. 12, 12-1.) A review of the proposed amended complaint shows that 14 it is virtually identical to Plaintiff’s SAC. Thus, the Court GRANTS Plaintiff’s Motion to 15 Amend and DIRECTS the Clerk of Court to file his proposed amended complaint, see 16 ECF No. 12-1, as Plaintiff’s Third Amended Complaint (“TAC”). In addition, Plaintiff 17 has filed a “Motion for Appointment of Counsel.” (ECF No. 10.) 18 II. MOTION TO APPOINT COUNSEL 19 In his Motion, Plaintiff requests the appointment of counsel because he is unable to 20 afford counsel and his “imprisonment will greatly limit his ability to litigate.” (ECF No. 21 10 at 1.) 22 However, there is no constitutional right to counsel in a civil case. Palmer v. Valdez, 23 560 F.3d 965, 970 (9th Cir. 2009); Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). 24 And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” 25 that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 26 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under 27 “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 28 1991). A finding of exceptional circumstances requires the Court “to consider whether 1 there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to 2 articulate his claims in light of the complexity of the legal issues involved.’” Harrington v. 3 Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 4 As currently pleaded, Plaintiff’s TAC demonstrates neither a likelihood of success 5 nor the legal complexity required to support the appointment of pro bono counsel pursuant 6 to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970. For 7 the reasons discussed more fully below, Plaintiff’s TAC requires sua sponte dismissal 8 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and it has become clear that he is unlikely to 9 succeed on the merits of any potential constitutional claim. 10 Therefore, the Court finds no “exceptional circumstances” currently exist and 11 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 5). 12 III. SCREENING OF TAC (28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)) 13 A. Standard of Review 14 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 15 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 16 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 17 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 18 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. 19 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); 20 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 21 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 22 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 23 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 24 680, 681 (7th Cir. 2012)). 25 “The standard for determining whether a plaintiff has failed to state a claim upon 26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 28 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Federal Rules of Civil Procedure
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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
ANDREW DAVID BRUINS, II, Case No.: 19cv1278 11 CDCR #K-70839, ORDER: 12 Plaintiff, 1) GRANTING MOTION TO 13 AMEND COMPLAINT; vs. 14
2) DIRECTING CLERK OF COURT TO FILE THIRD 15 AMENDED COMPLAINT; M. WHITMAN, Associate Warden; 16 A. ACEVEDO, Facility Captain, 3) DENYING MOTION FOR APPOINTMENT OF 17 Defendants. COUNSEL; AND 18 4) DISMISSING THIRD AMENDED COMPLAINT FOR 19 FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 20 1915(e)(2) AND 28 U.S.C. § 1915A(b) 21 (ECF Nos. 10, 12) 22 23 I. PROCEDURAL HISTORY 24 On July 10, 2019, Andrew David Bruins (“Plaintiff”), a prisoner incarcerated at 25 Calipatria State Prison (“CAL”) located in Calipatria, California, and proceeding pro se, 26 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) In addition, 27 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (See ECF No. 2.) 1 On July 22, 2019, the Court conducted the required sua sponte screening of 2 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (See ECF No. 4.) 3 In the Court’s July 22, 2019 Order, the Court granted Plaintiff’s IFP status but 4 simultaneously dismissed his Complaint for failing to state a claim upon which § 1983 5 relief could be granted. (See id. at 8–9.) The Court informed Plaintiff of the deficiencies 6 in his pleading and granted him leave to file an amended complaint. (See id. at 8.) On 7 August 29, 2019, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF No. 6.) 8 However, the Court again found Plaintiff failed to state a claim and dismissed his FAC 9 with leave to file another amended complaint. (See ECF No. 7 at 6–7.) 10 On November 25, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). 11 (See ECF No. 8.) However, before the Court could conduct the required sua sponte 12 screening, Plaintiff filed a “Motion to Amend Complaint,” along with a proposed amended 13 complaint. (ECF Nos. 12, 12-1.) A review of the proposed amended complaint shows that 14 it is virtually identical to Plaintiff’s SAC. Thus, the Court GRANTS Plaintiff’s Motion to 15 Amend and DIRECTS the Clerk of Court to file his proposed amended complaint, see 16 ECF No. 12-1, as Plaintiff’s Third Amended Complaint (“TAC”). In addition, Plaintiff 17 has filed a “Motion for Appointment of Counsel.” (ECF No. 10.) 18 II. MOTION TO APPOINT COUNSEL 19 In his Motion, Plaintiff requests the appointment of counsel because he is unable to 20 afford counsel and his “imprisonment will greatly limit his ability to litigate.” (ECF No. 21 10 at 1.) 22 However, there is no constitutional right to counsel in a civil case. Palmer v. Valdez, 23 560 F.3d 965, 970 (9th Cir. 2009); Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). 24 And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” 25 that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 26 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under 27 “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 28 1991). A finding of exceptional circumstances requires the Court “to consider whether 1 there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to 2 articulate his claims in light of the complexity of the legal issues involved.’” Harrington v. 3 Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 4 As currently pleaded, Plaintiff’s TAC demonstrates neither a likelihood of success 5 nor the legal complexity required to support the appointment of pro bono counsel pursuant 6 to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970. For 7 the reasons discussed more fully below, Plaintiff’s TAC requires sua sponte dismissal 8 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and it has become clear that he is unlikely to 9 succeed on the merits of any potential constitutional claim. 10 Therefore, the Court finds no “exceptional circumstances” currently exist and 11 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 5). 12 III. SCREENING OF TAC (28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)) 13 A. Standard of Review 14 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 15 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 16 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 17 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 18 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. 19 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); 20 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 21 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 22 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 23 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 24 680, 681 (7th Cir. 2012)). 25 “The standard for determining whether a plaintiff has failed to state a claim upon 26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 28 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 4 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 5 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 9 specific task that requires the reviewing court to draw on its judicial experience and 10 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 11 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 12 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 B. Rule 8 14 Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim 15 for relief in a pleading it must contain “a short and plain statement of the grounds for the 16 court’s jurisdiction” and “a short and plain statement of the claim showing that the pleader 17 is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). 18 Once again, like both Plaintiff’s original Complaint and his FAC, Plaintiff’s TAC 19 contains no factual allegations. Moreover, his TAC has no specific legal arguments and 20 mainly consists of rambling sentences. Thus, the Court finds that Plaintiff’s TAC fails to 21 comply with Rule 8. See McHenry v. Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996) 22 (upholding Rule 8(a) dismissal of complaint that was “argumentative, prolix, replete with 23 redundancy, and largely irrelevant”); Cafasso, United States ex rel. v. General Dynamics 24 C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 25 dismissals where pleadings were “verbose,” “confusing,” “distracting, ambiguous, and 26 unintelligible,” “highly repetitious,” and comprised of “incomprehensible rambling”). 27 C. Personal Causation 28 As noted above, Plaintiff’s TAC is devoid of any specific factual allegations. To 1 state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: (1) that a right 2 secured by the Constitution or laws of the United States was violated; and (2) that the 3 alleged violation was committed by a person acting under color of state law.” Campbell v. 4 Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011), citing Ketchum v. 5 Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 6 “The inquiry into causation must be individualized and focus on the duties and 7 responsibilities of each individual defendant whose acts or omissions are alleged to have 8 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), 9 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 10 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) 11 (“Causation is, of course, a required element of a § 1983 claim.”). A person deprives 12 another “of a constitutional right, within the meaning of section 1983, if he does an 13 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 14 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 15 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Plaintiff has not stated a claim against Defendants because he has failed to allege 17 facts regarding what actions were taken or not taken by Defendants. Therefore, the Court 18 finds that Plaintiff has failed to state a claim against Defendants upon which relief may be 19 granted. 20 IV. CONCLUSION AND ORDER 21 For the reasons explained, the Court: 22 1. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 10); 23 2. GRANTS Plaintiff’s Motion to Amend Complaint (ECF No. 12); 24 3. DIRECTS the Clerk of Court to file Plaintiff’s proposed complaint (ECF 25 No. 12-1) as Plaintiff’s Third Amended Complaint; 26 4. DISMISSES Plaintiff’s TAC for failing to state a claim upon which relief 27 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and for failing to 28 comply with FRCP 8; 1 5. DENIES leave to amend as futile, see Lopez, 203 F.3d at 1127; Schmier v. 2 Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) 3 || (recognizing “[f]utility of amendment” as a proper basis for dismissal without leave to 4 ||amend); 5 6. CERTIFIES that an IFP appeal of this dismissal would not be taken in good 6 pursuant to 28 U.S.C. § 1915(a)(3); and 7 7. DIRECTS the Clerk to enter a final judgment and close the file. 8 IT IS SO ORDERED. 9 / □ 10 || DATED: December 12, 2019 (pil A (Bashan. 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6