1 2 3 4 5 6 7 10 DARRON NYGENE HART, 11 Case No. 19-04331 EJD (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DENYING v.
APPOINTMENT OF COUNSEL;
14 DIRECTING DEFENDANTS TO FILE SCOTT KERNAN, et al., DISPOSITIVE MOTION OR NOTICE 15 REGARDING SUCH MOTION; Defendants. INSTRUCTIONS TO CLERK 16 (Docket No. 41)
18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against officers and medical staff at Salinas Valley State 20 Prison (“SVSP”), where he was formerly housed. After the Court had orders service of the 21 complaint, Plaintiff filed an amended complaint.1 Dkt. No. 28. Because the amended 22 complaint complied with the time provisions under Federal Rule of Civil Procedure 23 15(a)(a)(A), the Court deemed the amended complaint the operative complaint in this 24 action and stayed briefing until further order from the Court. Dkt. No. 39. Plaintiff has 25 filed a second motion for appointment of counsel. Dkt. No. 41 26
27 1 Plaintiff later filed additional exhibits in support of his amended complaint, which the 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff claims that he has been housed in a cell with hazardous and unsafe 16 weather-related leaks at SVSP, which resulted in him suffering a slip and fall on January 17 18, 2018, when he stepped into a pool of rain water that had collected on the floor of his 18 cell. Dkt. No. 28 at 10. Plaintiff claims that he had requested Defendant Officer T. 19 Wheeler several times to be moved to a safe cell, but that he was merely given a squeegee 20 to push the water out of his cell. Id. at 9. Plaintiff claims he injured his head, neck, and 21 entire back due to the fall. Id. at 10. Plaintiff claims that the medical care he received 22 thereafter, including pain medication and a cane accommodation, from Defendants Dr. 23 Waheed Ibrahimi, Dr. Rosana Javate, Nurse Riesha Arnet, Dr. Lam, Dr. Heden, Nurse 24 Alfred Valera, Nurse Kirk, Nurse Helen Thornton, and Dr. Darrin Bright amounted to 25 deliberate indifference to serious medical needs. Id. at 11, 14-15, 20-35. Plaintiff also 26 claims that Defendants Chief Deputy Warden T. Foss, Captain Celaya, Lt. Ruiz, Sgt. 1 yet continued to expose him to an unreasonable risk of serious harm and deprived him of a 2 basis human need, i.e., “safe and humane shelter free of exposure to unsafe and unsanitary 3 outside elements which resulted in continued injury.” Id. at 16, 36-37. Liberally 4 construed, Plaintiff states a cognizable claim under the Eighth Amendment for exposure to 5 unsafe conditions and for deliberate indifference to serious medical needs. See Estelle v. 6 Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 832 (1994). 7 Lastly, Plaintiff claims that Defendant Scott Kernan was aware of the dangerous 8 weather-related conditions in several of the prisons and had funds to repair them but failed 9 to act. Id. at 36-39. Plaintiff alleges that Defendant Kernan’s knowledge of the conditions 10 and his failure to respond reasonably was “callous” and his “acts, actions, or omitting 11 thereof, was ‘negligent.’” Id. at 39. Even if it were true that Defendant Kernan was aware 12 of weather-related conditions at various prisons and had funds to address them, his 13 negligence or even gross negligence in failing to act is not actionable under § 1983 in the 14 prison context. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood v. 15 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state 16 claim for denial of medical needs to prisoner). The applicable standard is one of deliberate 17 indifference to inmate health or safety under the Eighth Amendment, see Farmer, 511 U.S. 18 at 834; Wilson v. Seiter, 501 U.S. 294, 302 (1991). A prison official cannot be held liable 19 under the Eighth Amendment for denying an inmate humane conditions of confinement 20 unless the standard for criminal recklessness is met, i.e., the official knows of and 21 disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837. The 22 official must both be aware of facts from which the inference could be drawn that a 23 substantial risk of serious harm exists, and he must also draw the inference. See id. Here, 24 there is no allegation that Defendant Kernan was personally aware that Plaintiff was facing 25 an excessive risk to his health or safety and that he could have acted but failed to do so. 26 Accordingly, the claim against Defendant Kernan is DISMISSED for failure to state a 1 C. Motion for Appointment of Counsel 2 Plaintiff has filed a second motion for appointment of counsel. Dkt. No. 41. There 3 is no constitutional right to counsel in a civil case unless an indigent litigant may lose his 4 physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 5 18, 25 (1981)1; Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 6 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 7 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 8 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 9 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 10 Cir. 1984). Plaintiff asserts that he is indigent, has limited access to the law library, 11 limited knowledge of the law, and that his efforts to obtain an attorney has been thwarted 12 by the prison. Dkt. No. 41 at 1.
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1 2 3 4 5 6 7 10 DARRON NYGENE HART, 11 Case No. 19-04331 EJD (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DENYING v.
APPOINTMENT OF COUNSEL;
14 DIRECTING DEFENDANTS TO FILE SCOTT KERNAN, et al., DISPOSITIVE MOTION OR NOTICE 15 REGARDING SUCH MOTION; Defendants. INSTRUCTIONS TO CLERK 16 (Docket No. 41)
18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against officers and medical staff at Salinas Valley State 20 Prison (“SVSP”), where he was formerly housed. After the Court had orders service of the 21 complaint, Plaintiff filed an amended complaint.1 Dkt. No. 28. Because the amended 22 complaint complied with the time provisions under Federal Rule of Civil Procedure 23 15(a)(a)(A), the Court deemed the amended complaint the operative complaint in this 24 action and stayed briefing until further order from the Court. Dkt. No. 39. Plaintiff has 25 filed a second motion for appointment of counsel. Dkt. No. 41 26
27 1 Plaintiff later filed additional exhibits in support of his amended complaint, which the 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff claims that he has been housed in a cell with hazardous and unsafe 16 weather-related leaks at SVSP, which resulted in him suffering a slip and fall on January 17 18, 2018, when he stepped into a pool of rain water that had collected on the floor of his 18 cell. Dkt. No. 28 at 10. Plaintiff claims that he had requested Defendant Officer T. 19 Wheeler several times to be moved to a safe cell, but that he was merely given a squeegee 20 to push the water out of his cell. Id. at 9. Plaintiff claims he injured his head, neck, and 21 entire back due to the fall. Id. at 10. Plaintiff claims that the medical care he received 22 thereafter, including pain medication and a cane accommodation, from Defendants Dr. 23 Waheed Ibrahimi, Dr. Rosana Javate, Nurse Riesha Arnet, Dr. Lam, Dr. Heden, Nurse 24 Alfred Valera, Nurse Kirk, Nurse Helen Thornton, and Dr. Darrin Bright amounted to 25 deliberate indifference to serious medical needs. Id. at 11, 14-15, 20-35. Plaintiff also 26 claims that Defendants Chief Deputy Warden T. Foss, Captain Celaya, Lt. Ruiz, Sgt. 1 yet continued to expose him to an unreasonable risk of serious harm and deprived him of a 2 basis human need, i.e., “safe and humane shelter free of exposure to unsafe and unsanitary 3 outside elements which resulted in continued injury.” Id. at 16, 36-37. Liberally 4 construed, Plaintiff states a cognizable claim under the Eighth Amendment for exposure to 5 unsafe conditions and for deliberate indifference to serious medical needs. See Estelle v. 6 Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 832 (1994). 7 Lastly, Plaintiff claims that Defendant Scott Kernan was aware of the dangerous 8 weather-related conditions in several of the prisons and had funds to repair them but failed 9 to act. Id. at 36-39. Plaintiff alleges that Defendant Kernan’s knowledge of the conditions 10 and his failure to respond reasonably was “callous” and his “acts, actions, or omitting 11 thereof, was ‘negligent.’” Id. at 39. Even if it were true that Defendant Kernan was aware 12 of weather-related conditions at various prisons and had funds to address them, his 13 negligence or even gross negligence in failing to act is not actionable under § 1983 in the 14 prison context. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood v. 15 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state 16 claim for denial of medical needs to prisoner). The applicable standard is one of deliberate 17 indifference to inmate health or safety under the Eighth Amendment, see Farmer, 511 U.S. 18 at 834; Wilson v. Seiter, 501 U.S. 294, 302 (1991). A prison official cannot be held liable 19 under the Eighth Amendment for denying an inmate humane conditions of confinement 20 unless the standard for criminal recklessness is met, i.e., the official knows of and 21 disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837. The 22 official must both be aware of facts from which the inference could be drawn that a 23 substantial risk of serious harm exists, and he must also draw the inference. See id. Here, 24 there is no allegation that Defendant Kernan was personally aware that Plaintiff was facing 25 an excessive risk to his health or safety and that he could have acted but failed to do so. 26 Accordingly, the claim against Defendant Kernan is DISMISSED for failure to state a 1 C. Motion for Appointment of Counsel 2 Plaintiff has filed a second motion for appointment of counsel. Dkt. No. 41. There 3 is no constitutional right to counsel in a civil case unless an indigent litigant may lose his 4 physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 5 18, 25 (1981)1; Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 6 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 7 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 8 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 9 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 10 Cir. 1984). Plaintiff asserts that he is indigent, has limited access to the law library, 11 limited knowledge of the law, and that his efforts to obtain an attorney has been thwarted 12 by the prison. Dkt. No. 41 at 1. None of these reasons distinguish Plaintiff from other 13 similarly situated pro se incarcerated plaintiffs, and his inability to obtain an attorney on 14 his own does not amount to exceptional circumstances. Accordingly, Plaintiff’s motion for 15 appointment of counsel is DENIED without prejudice for lack of exceptional 16 circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. 17 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 18 (9th Cir. 1986). 19 21 For the reasons state above, the Court orders as follows: 22 1. All the Defendants in this action have appeared with counsel, Dkt. No. 33, 23 with the exceptions of Defendants T. Wheeler and Waheed Ibrahimi. Accordingly, the 24 Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of 25 Summons, two copies of the Waiver of Service of Summons, a copy of the amended 26 complaint, Dkt. No. 28, all attachments thereto, and a copy of this order upon Defendants 1 Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Clerk shall also mail a copy of 2 this Order to Plaintiff. 3 The claim against Defendant Scott Kernan has been dismissed. Accordingly, the 4 Clerk shall terminate Defendant Kernan from this action. 5 2. Defendants Wheeler and Ibrahimi are cautioned that Rule 4 of the Federal 6 Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service 7 of the summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 8 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 9 summons, fail to do so, they will be required to bear the cost of such service unless good 10 cause shown for their failure to sign and return the waiver form. If service is waived, this 11 action will proceed as if Defendants had been served on the date that the waiver is filed, 12 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 13 an answer before sixty (60) days from the day on which the request for waiver was sent. 14 (This allows a longer time to respond than would be required if formal service of summons 15 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 16 form that more completely describes the duties of the parties with regard to waiver of 17 service of the summons. If service is waived after the date provided in the Notice but 18 before Defendants have been personally served, the Answer shall be due sixty (60) days 19 from the date on which the request for waiver was sent or twenty (20) days from the date 20 the waiver form is filed, whichever is later. 21 3. No later than ninety-one (91) days from the date this order is filed, 22 Defendants shall file a motion for summary judgment or other dispositive motion with 23 respect to the claims in the amended complaint found to be cognizable above. 24 a. Any motion for summary judgment shall be supported by adequate 25 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 26 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 1 opinion that this case cannot be resolved by summary judgment, he shall so inform the 2 Court prior to the date the summary judgment motion is due. 3 b. In the event Defendants file a motion for summary judgment, the 4 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 5 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 6 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 7 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 8 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 9 motion is filed. 10 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 12 must come forward with evidence showing triable issues of material fact on every essential 13 element of his claim). Plaintiff is cautioned that failure to file an opposition to 14 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 15 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 16 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 17 F.3d 651, 653 (9th Cir. 1994). 18 5. Defendants shall file a reply brief no later than fourteen (14) days after 19 Plaintiff’s opposition is filed. 20 6. The motion shall be deemed submitted as of the date the reply brief is due. 21 No hearing will be held on the motion unless the Court so orders at a later date. 22 7. All communications by the Plaintiff with the Court must be served on 23 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 24 copy of the document to Defendants or Defendants’ counsel. 25 8. Discovery may be taken in accordance with the Federal Rules of Civil 26 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 1 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 || court informed of any change of address and must comply with the court’s orders in a 3 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 4 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 10. Extensions of time must be filed no later than the deadline sought to be 6 || extended and must be accompanied by a showing of good cause. 7 11. Plaintiffs motion for appointment of counsel is DENIED for lack of 8 || exceptional circumstances. Dkt. No. 41. 9 This order terminates Docket No. 41. 11 Dated: — 7/6/2020 EDWARD J. DAVILA V2 United States District Judge
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Z 18 19 20 21 22 23 24 25 26 Order of Partial Dismissal and of Service; Deny Atty PRO-SE\EJD\CR.19\0433 1 Hart_svc&aaty 27