1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW MICHAEL BUCAOJIT, No. 2:19-cv-2055-EFB P 12 Plaintiff, 13 v. ORDER 14 SOLANO COUNTY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks to proceed in forma pauperis. ECF No. 2. He has also filed a motion for 19 appointment of counsel (ECF No. 8) and a request for discovery (ECF No. 12). 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application (ECF Nos. 2 and 11) makes the showing required by 28 U.S.C. 22 § 1915(a)(1). Accordingly, his request to proceed in forma pauperis is granted. 23 Request for Appointment of Counsel 24 District courts may authorize the appointment of counsel to represent an indigent civil 25 litigant in certain exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 26 F.2d 1015, 1017 (9th Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); 27 Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional 28 circumstances exist, the court must evaluate (1) the plaintiff’s likelihood of success on the merits; 1 and (2) the ability of the plaintiff to articulate her claims pro se in light of the complexity of the 2 legal issues involved. Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s 3 likelihood of success, the complexity of the issues, or the degree of plaintiff’s ability to articulate 4 her claims amount to exceptional circumstances justifying the appointment of counsel at this 5 time. 6 Screening 7 I. Legal Standards 8 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 9 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 10 which relief may be granted, or seeks monetary relief against an immune defendant. 11 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 12 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 13 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 14 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 15 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 16 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 17 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 18 relief above the speculative level on the assumption that all of the complaint's allegations are 19 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 20 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 21 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 22 In reviewing a complaint under this standard, the court must accept as true the allegations 23 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 24 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 25 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 26 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 27 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 28 ///// 1 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 2 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 3 II. Analysis 4 Across both complaints, plaintiff is pursuing various claims against members of the 5 Solano County Sheriff’s Department, none of which are sufficiently related to proceed jointly. 6 First, plaintiff alleges that defendant Carreon failed to supply him with a “showering 7 apparatus” that would accommodate his disabilities. ECF No. 1 at 5, ECF No. 10 at 5. Plaintiff 8 states that he is incapable of walking or standing and, thus, could not shower without the 9 apparatus. ECF No. 10 at 5. He does not allege when this denial occurred or the nature of his 10 interactions with Carreon. 11 Second, plaintiff alleges that defendant Ammermen was escorting him and directed him to 12 move faster. ECF No. 1 at 6, ECF No. 10 at 6. Plaintiff explained that he could not and, in 13 response, Ammermen allegedly grabbed plaintiff and attempted to carry him. ECF No. 1 at 6. 14 Plaintiff alleges that Ammermen dropped him, however, causing “extreme and unnecessary 15 pain.” Id. 16 Third, plaintiff alleges that unspecified defendants transported him to and from medical 17 appointments and court proceedings in vehicles lacking wheelchair accessibility and seatbelts. 18 ECF No. 1 at 7, ECF No. 10 at 7. 19 Fourth, plaintiff alleges that, during his incarceration at the Solano County Stanton 20 Facility, he was not given a cell that complied with the Americans with Disabilities Act. ECF 21 No. 1 at 8, ECF No. 10 at 8. He claims that the lack of disability accommodations made drinking 22 water and using the restroom difficult. ECF No. 10 at 8. He does not specify which defendants 23 were responsible for this housing assignment. 24 Fifth, plaintiff alleges that, on February 8, 2019 and while he was out of his cell, he 25 advised defendant Hambright that he was in pain and needed to return to his housing area. ECF 26 No. 1 at 9, ECF No. 10 at 9. Hambright allegedly denied his request and made plaintiff wait 27 longer than his peers to return to prison housing. ECF No. 10 at 9. Plaintiff claims that 28 Hambright’s actions were undertaken in retaliation for “something I did last time I was at court.” 1 ECF No. 1 at 9. He does not elaborate on what action spurred Hambright’s alleged retaliation, 2 however. 3 Sixth, on an unspecified date and in uncertain circumstances, plaintiff alleges that 4 defendant Bidou ordered him to “crawl and slither” across the floor in front of other inmates. 5 ECF No. 1 at 10, ECF No. 10 at 10. 6 Seventh, plaintiff alleges that defendant Hun confiscated his wheelchair for a period of 7 three days and effectively immobilized him thereby. ECF No. 1 at 11, ECF No. 10 at 11. 8 Eighth, plaintiff alleges that defendant Areola, during lunch and in the presence of 9 numerous other inmates, verbally humiliated plaintiff by implying that he offered sexual favors to 10 other correctional officers. ECF No. 1 at 12, ECF No. 10 at 12.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW MICHAEL BUCAOJIT, No. 2:19-cv-2055-EFB P 12 Plaintiff, 13 v. ORDER 14 SOLANO COUNTY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks to proceed in forma pauperis. ECF No. 2. He has also filed a motion for 19 appointment of counsel (ECF No. 8) and a request for discovery (ECF No. 12). 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application (ECF Nos. 2 and 11) makes the showing required by 28 U.S.C. 22 § 1915(a)(1). Accordingly, his request to proceed in forma pauperis is granted. 23 Request for Appointment of Counsel 24 District courts may authorize the appointment of counsel to represent an indigent civil 25 litigant in certain exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 26 F.2d 1015, 1017 (9th Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); 27 Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional 28 circumstances exist, the court must evaluate (1) the plaintiff’s likelihood of success on the merits; 1 and (2) the ability of the plaintiff to articulate her claims pro se in light of the complexity of the 2 legal issues involved. Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s 3 likelihood of success, the complexity of the issues, or the degree of plaintiff’s ability to articulate 4 her claims amount to exceptional circumstances justifying the appointment of counsel at this 5 time. 6 Screening 7 I. Legal Standards 8 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 9 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 10 which relief may be granted, or seeks monetary relief against an immune defendant. 11 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 12 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 13 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 14 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 15 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 16 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 17 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 18 relief above the speculative level on the assumption that all of the complaint's allegations are 19 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 20 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 21 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 22 In reviewing a complaint under this standard, the court must accept as true the allegations 23 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 24 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 25 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 26 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 27 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 28 ///// 1 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 2 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 3 II. Analysis 4 Across both complaints, plaintiff is pursuing various claims against members of the 5 Solano County Sheriff’s Department, none of which are sufficiently related to proceed jointly. 6 First, plaintiff alleges that defendant Carreon failed to supply him with a “showering 7 apparatus” that would accommodate his disabilities. ECF No. 1 at 5, ECF No. 10 at 5. Plaintiff 8 states that he is incapable of walking or standing and, thus, could not shower without the 9 apparatus. ECF No. 10 at 5. He does not allege when this denial occurred or the nature of his 10 interactions with Carreon. 11 Second, plaintiff alleges that defendant Ammermen was escorting him and directed him to 12 move faster. ECF No. 1 at 6, ECF No. 10 at 6. Plaintiff explained that he could not and, in 13 response, Ammermen allegedly grabbed plaintiff and attempted to carry him. ECF No. 1 at 6. 14 Plaintiff alleges that Ammermen dropped him, however, causing “extreme and unnecessary 15 pain.” Id. 16 Third, plaintiff alleges that unspecified defendants transported him to and from medical 17 appointments and court proceedings in vehicles lacking wheelchair accessibility and seatbelts. 18 ECF No. 1 at 7, ECF No. 10 at 7. 19 Fourth, plaintiff alleges that, during his incarceration at the Solano County Stanton 20 Facility, he was not given a cell that complied with the Americans with Disabilities Act. ECF 21 No. 1 at 8, ECF No. 10 at 8. He claims that the lack of disability accommodations made drinking 22 water and using the restroom difficult. ECF No. 10 at 8. He does not specify which defendants 23 were responsible for this housing assignment. 24 Fifth, plaintiff alleges that, on February 8, 2019 and while he was out of his cell, he 25 advised defendant Hambright that he was in pain and needed to return to his housing area. ECF 26 No. 1 at 9, ECF No. 10 at 9. Hambright allegedly denied his request and made plaintiff wait 27 longer than his peers to return to prison housing. ECF No. 10 at 9. Plaintiff claims that 28 Hambright’s actions were undertaken in retaliation for “something I did last time I was at court.” 1 ECF No. 1 at 9. He does not elaborate on what action spurred Hambright’s alleged retaliation, 2 however. 3 Sixth, on an unspecified date and in uncertain circumstances, plaintiff alleges that 4 defendant Bidou ordered him to “crawl and slither” across the floor in front of other inmates. 5 ECF No. 1 at 10, ECF No. 10 at 10. 6 Seventh, plaintiff alleges that defendant Hun confiscated his wheelchair for a period of 7 three days and effectively immobilized him thereby. ECF No. 1 at 11, ECF No. 10 at 11. 8 Eighth, plaintiff alleges that defendant Areola, during lunch and in the presence of 9 numerous other inmates, verbally humiliated plaintiff by implying that he offered sexual favors to 10 other correctional officers. ECF No. 1 at 12, ECF No. 10 at 12. Plaintiff claims that Areola’s 11 actions agitated “pre-existing mental issues.” ECF No. 1 at 12. 12 Finally, plaintiff alleges that defendant Hipol made “a direct threat of rape” while 13 transporting him. ECF No. 1 at 13, ECF No. 10 at 13. Plaintiff does not elaborate on the nature 14 of the threat. 15 At this time, the court will not undertake to analyze whether each of the nine claims is 16 cognizable. Instead, plaintiff is instructed that he may not bring multiple, unrelated claims 17 against more than one defendant. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 18 (“[M]ultiple claims against a single party are fine, but . . . [u]nrelated claims against different 19 defendants belong in different suits . . . .”). The nine foregoing claims, as currently articulated, 20 are not sufficiently related to proceed jointly in a single action. The question of whether 21 defendant Ammermen dropped plaintiff while transporting him (and what, if any, legal recourse 22 that would entitle plaintiff to) has no bearing on whether defendant Hun confiscated his 23 wheelchair or whether defendant Hipol threatened to sexually assault him. 24 Plaintiff will be given leave to amend. If he files an amended complaint he should 25 undertake to: (1) fully allege the context of each of his claims – including the relevant dates and 26 defendants involved; and (2) narrow the scope of his complaint to ensure, as described above, that 27 all of the claims bear sufficient relation to one another. 28 ///// 1 III. Leave to Amend 2 Plaintiff is cautioned that any amended complaint must identify as a defendant only 3 persons who personally participated in a substantial way in depriving him of his constitutional 4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 7 include any allegations based on state law that are so closely related to his federal allegations that 8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 9 The amended complaint must also contain a caption including the names of all defendants. 10 Fed. R. Civ. P. 10(a). 11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 12 George, 507 F.3d 605 at 607. 13 Any amended complaint must be written or typed so that it so that it is complete in itself 14 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 15 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 16 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 17 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 18 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 19 1967)). 20 Any amended complaint should be as concise as possible in fulfilling the above 21 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 22 background which has no bearing on his legal claims. He should also take pains to ensure that his 23 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 24 and organization. Plaintiff should carefully consider whether each of the defendants he names 25 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 26 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 27 ///// 28 ///// wOoOe 2h UV ETB MMVUUETOCII tO PO reer FAY VI
1 Request for Discovery 2 If appropriate (.e., plaintiff files an amended complaint stating a cognizable claim and 3 || defendant(s) file an answer), the court will issue a discovery and scheduling order. Until then, 4 | requests for discovery are premature. Plaintiffs request for discovery is denied. 5 Conclusion 6 Accordingly, it is ORDERED that 7 1. Plaintiff’ application to proceed in forma pauperis (ECF No. 2) is GRANTED; 8 2. Plaintiff’s second application to proceed in forma pauperis (ECF No. 11) is 9 DENIED as MOOT; 10 3. Plaintiffs request for appointment of counsel (ECF No. 8) is DENIED without 11 prejudice; 12 4. Plaintiff’ s request for discovery (ECF No. 12) is DENIED; 13 5. Plaintiffs complaints (ECF No. 1 & ECF No. 10) are dismissed with leave to 14 amend within 30 days from the date of service of this order; and 15 6. Failure to file an amended complaint that complies with this order may result in 16 the dismissal of this action for the reasons stated herein. 17 | DATED: April 21, 2020.
19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28