Delena v. Lara

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID I. DELENA, JR., Case No.: 3:23-cv-0345-JAH-AHG CDCR #AL8117 12 ORDER: (1) DENYING MOTION 13 FOR APPOINTMENT OF Plaintiff, COUNSEL (ECF NO. 8) AND 14 vs. 15 (2) DIRECTING U.S. MARSHAL

TO EFFECT SERVICE OF THE 16 GEORGE LARA, K. MACK, FIRST AMENDED COMPLAINT 17 Defendants. AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. 18 CIV. P. 4(c)(3) 19

20 I. INTRODUCTION 21 On February 17, 2023, David I. Delena, Jr. (“Plaintiff” of “Delena”), a state inmate 22 proceeding pro se filed a civil rights action pursuant to 42 U.S.C. § 1983, along with an 23 application to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. On March 9, 2023, the 24 Court denied Delena’s IFP motion because it lacked sufficient support. ECF No. 3. Plaintiff 25 subsequently filed a complete IFP motion (ECF No. 3) and on June 22, 2023, the Court 26 granted Plaintiff’s IFP motion and dismissed the original Complaint without prejudice for 27 failure to state a claim. ECF No. 5. The Court notified Plaintiff that in order to proceed, he 28 must file a First Amended Complaint (“FAC”) within 45 days. ECF No. 5. On August 7, 1 2023, Plaintiff timely filed an FAC. ECF No. 7. He filed a Motion for Appointment of 2 Counsel on August 30, 2023. ECF No. 8. 3 II. MOTION FOR APPOINTMENT OF COUNSEL 4 In his Motion for Appointment of Counsel, Plaintiff states he is indigent and seeks 5 counsel to “help him with the legal paperwork and processes.” Id. at 3. He states he has 6 attempted to obtain counsel by placing calls to various attorneys but none have responded. 7 Id. 8 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 9 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And 10 while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that 11 an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 12 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional 13 circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A 14 finding of exceptional circumstances requires the Court “to consider whether there is a 15 ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to articulate his 16 claims in light of the complexity of the legal issues involved.’” Harrington v. Scribner, 17 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 18 Plaintiff has failed to demonstrate a likelihood of success or the legal complexity 19 required to support the appointment of pro bono counsel pursuant to 28 U.S.C. 20 § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970. First, while Plaintiff 21 may not be formally trained in the law he appears capable of legibly articulating the facts 22 and circumstances relevant to his claims which are not legally “complex.” Agyeman, 390 23 F.3d at 1103. Second, it is simply too soon to tell whether he will be likely to succeed on 24 the merits of any potential constitutional claim against any of the defendants. Id. Finally, 25 to the extent Plaintiff asserts his detention makes it necessary for counsel, a lack of legal 26 training and limited access to the law library, are issues common to many prisoners and do 27 not amount to exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d 1332, 28 1335–36 (9th Cir. 1990). 1 Based on the foregoing, the Court finds no “exceptional circumstances” currently 2 exist and DENIES Plaintiff’s Motion to Appoint Counsel without prejudice. 3 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b) 4 A. Legal Standards 5 Plaintiff’s FAC requires a pre-answer screening pursuant to 28 U.S.C. 6 §§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court must sua sponte dismiss a 7 prisoner’s IFP complaint that is frivolous, malicious, fails to state a claim, or seeks damages 8 from defendants who are immune. Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 9 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 10 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 11 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 12 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 13 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 14 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 15 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 16 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 17 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 18 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 19 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 21 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 22 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 23 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 25 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 26 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 27 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 28 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 1 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 2 substantive rights, but merely provides a method for vindicating federal rights elsewhere 3 conferred.” Graham v. Connor, 40 U.S. 386 U.S. 386, 393–94 (1989) (internal quotation 4 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 5 of a right secured by the Constitution and laws of the United States, and (2) that the 6 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 7 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 8 B. Plaintiff’s Allegations 9 In his FAC, Delena states he has been an inmate participant in the California 10 Department of Corrections and Rehabilitation (“CDCR”) welding program since 2016. 11 ECF No. 7 at 3. While an inmate at Centinela State Prison (“CEN”) Delena participated in 12 the CDCR’s welding program, which was instructed by G. Lara and supervised by K. 13 Mack. Id. 14 As the welding instructor, Lara periodically gave one-hour lectures to students 15 regarding the process of welding and safety practices. Id. The lectures were consistent with 16 information contained in the NCCER1 book on welding. Delena states that during the safety 17 lectures, students referred to the NCCER book, “discussed safety equipment,” and 18 referenced photos contained in the NCCER book depicting “graphic” injuries caused by 19 failure to follow proper safety protocols, including the specific “dangers of wearing . . . 20 polyester blend pants.” Id. 21 Despite the NCCER-recommended safety guidelines, Delena and other students 22 were required to wear their state-issued CDCR clothing, including pants that are made from 23 a cotton and polyester blend fabric. Id. Plaintiff raised the safety issue with Lack on at least 24 three occasions. Id. at 5. On one of those occasions, Lara acknowledged “the dangers of 25 wearing polyester pants” but said inmates were obligated to participate in the program or 26 27 1 NCCER appears to stand for National Center for Construction Education and Research. 28 1 be “writte[n] up” and dropped from the class. Id. 2 K. Mack was the supervisor of the vocational welding program at CEN. Id. at 6. As 3 part of his duties, he attended quarterly meetings with student representatives from the 4 program. As the student representative for the welding program, Delena attended the 5 meetings and “brought up the issues of [the CDCR-issued] pants being unsafe” for welding. 6 Id. at 6. Subsequently, Mack referred to Delena as “the inmate who complains.” Id. at 7. 7 Inmates in the welding program continued to be required to wear their polyester-blend 8 pants because failure to do so would result in them being written up and dropped from the 9 program. Id. 10 On December 7, 2021, Delena was performing a welding assignment when his pants 11 caught fire. Delena sustained “severe second-degree burns” to his left leg, from the top of 12 his knee to below his calf, when his polyester blend pants “melted to [his] leg.” Id. at 3. 13 After Delena’s injury, he filed an administrative grievance. CDCR subsequently “provided 14 leather coverings” for welding students. Id. 15 Delena asserts Defendants Lara and Mack violated his Eighth Amendment rights 16 when they failed to issue protective clothing for use when welding, despite knowing the 17 dangers, resulting in his burn injury. ECF No. 7 at 2. He seeks money damages as well as 18 an injunction requiring CDCR welding students be provided with adequate safety 19 equipment. Id. at 10. 20 C. Discussion 21 The Eighth Amendment prohibits the imposition of cruel and unusual punishments. 22 Estelle v. Gamble, 429 U.S. 97, 102 (1976). To that end, prison officials are required to 23 take “reasonable measures to guarantee the safety” of inmates. Farmer v. Brennan, 511 24 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). 25 An Eighth Amendment claim against a prison official must meet two requirements, 26 one subjective and one objective. Farmer, 511 U.S. at 834, 837. First, the deprivation 27 alleged must be, objectively, “sufficiently serious.” Id. at 834. When a claim is based on 28 based on a failure to prevent harm, this means “the inmate must show that he is incarcerated 1 under conditions posing a substantial risk of serious harm.” Id. Second, under the 2 subjective requirement, the inmate must show the prison official acted with “deliberate 3 indifference” to his safety. Id. at 837. This requires a showing the defendant acted with a 4 “sufficiently culpable state of mind.” Id. “[I]t is not enough that the official objectively 5 should have recognized the danger but failed to do so.” Jeffers v. Gomez, 267 F.3d 895, 6 914 (9th Cir. 2001) (citing Farmer, 511 U.S. at 838). “[T]he official must both be aware 7 of facts from which the inference could be drawn that a substantial risk of harm exists, and 8 he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, even if a prison official 9 “should have been aware of the risk,” if he or she was not, “then the official has not violated 10 the Eighth Amendment, no matter how severe the risk.” Id. at 834. 11 Based on the allegations in the FAC, the Court finds Plaintiff has sufficiently stated 12 a claim against Defendants Lara and Mack, such that an answer is required. See Wallis v. 13 Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995) (finding deliberate indifference where 14 defendants required inmates to clean from attic material known to contain dangerous 15 asbestos without protective gear demonstrated deliberate indifference); Morgan v. 16 Morgensen, 465 F.3d at 1044, 1046 (affirming denial of defendant’s motion for summary 17 judgment on Eighth Amendment claim in case brought by prisoner whose thumb was torn 18 off by a printing press that was known to have loose chains that “caused the press to buck 19 and shake”); Carr v. California Dep’t of Corr. & Rehab., No. 17cv-01769-DAD-SAB, 20 2018 WL 2106482, at *3 (E.D. Cal. May 7, 2018) (finding inmate stated a claim sufficient 21 to survive screening where the plaintiff alleged the defendant threatened him with 22 discipline or termination if he did not manually perform his work assignment, despite 23 obvious safety concerns, and plaintiff was injured as a result); Rogers v. Rodriguez, No. 24 18-cv-0846-JLT-PC, 2019 WL 4917536, at *4 (E.D. Cal. Oct. 4, 2019) (finding plaintiff 25 stated a plausible claim against prison officer who refused to provide him with proper 26 safety gear (to wit, rubber boots) before forcing him to work in the freezer); Starr v. Baca, 27 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a supervisor under 28 § 1983 if there exists either (1) his or her personal involvement in the constitutional 1 deprivation, or (2) a sufficient causal connection between the supervisor's wrongful 2 conduct and the constitutional violation.”). 3 IV. CONCLUSION AND ORDER 4 For the reasons set forth above, the Court: 5 1. DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 8) without 6 prejudice. 7 2. DIRECTS the Clerk to issue a summons as to the First Amended Complaint 8 (ECF No. 7) upon Defendants Lara and Mack and forward it to Plaintiff along with blank 9 U.S. Marshal Form 285s for Defendants Lara and Mack. In addition, the Clerk will provide 10 Plaintiff with a certified copy this Order, a certified copy of his First Amended Complaint, 11 and the summons so that he may serve Defendants Lara and Mack. Upon receipt of this 12 “IFP Package,” Plaintiff must complete the USM Form 285s as completely and accurately 13 as possible, include addresses where the Defendants may be found and/or subject to service 14 pursuant to S.D. Cal. CivLR 4.1c., and return them to the U.S. Marshal according to the 15 instructions the Clerk provides. 16 3. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 17 and summons upon the Defendants Lara and Mack as directed by Plaintiff on the USM 18 Form 285s provided, and to file executed waivers of personal service upon Agular with the 19 Clerk of Court as soon as possible after their return. Should Defendants fail to return the 20 U.S. Marshal’s request for waiver of personal service within 90 days, the U.S. Marshal 21 shall instead file the completed Form USM 285 Process Receipt and Return with the Clerk 22 of Court, include the date the summons, First Amended Complaint, and request for waiver 23 was mailed to Defendants, and indicate why service upon that party remains unexecuted. 24 All costs of U.S. Marshal service will be advanced by the United States; however, if 25 Defendant is located within the United States and fails, without good cause, to sign and 26 return the waiver requested by the Marshal on Plaintiff’s behalf, the Court will impose 27 upon Defendant any expenses later incurred in making personal service. See 28 U.S.C. 28 § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2). 1 4. ORDERS Defendants, once served, to reply to Plaintiff's Amended 2 ||Complaint, and any subsequent pleading he may file in this matter in which they are named 3 || as parties, within the time provided by the applicable provisions of Federal Rule of Civil 4 ||Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendant may 5 ||}occasionally be permitted to “waive the night to reply to any action brought by a prisoner 6 ||confined in any jail, prison, or other correctional facility under section 1983,” once the 7 ||Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 8 1915A(b), and thus, has made a preliminary determination based on the face on the 9 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 10 || Defendant is required to respond). 11 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 12 serve upon Defendants Lara and Mack, or if appearance has been entered by counsel, upon 13 Defendants’ counsel, a copy of every further pleading, motion, or other document 14 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 15 |}include with every original document he seeks to file with the Clerk of the Court, a 16 || certificate stating the manner in which a true and correct copy of that document was served 17 ||on Defendants or their counsel, and the date of that seyvice. See S.D. Cal. CivLR 5.2. 18 || Dated: October 23, 2023 VU 19 John A. Houston 0 United States District Judge 21 22 23 24 25 26 27 28