1 2 3 4 5 6 7 10 11 ROBERT EPPS, No. 2:23-cv-00135-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 ARCHIE, et al., 15 Defendants. 16 17 Plaintiff is confined to a state hospital and proceeds without counsel in an action brought 18 under 42 U.S.C. § 1983.1 In addition to filing a complaint (ECF No. 1) and an amended 19 complaint (ECF No. 11), plaintiff has filed two motions for appointment of counsel (ECF Nos. 6 20 & 10) and an “attachment to amended complaint” (ECF No. 12). 21 Requests for Appointment of Counsel 22 District courts lack authority to require counsel to represent indigent prisoners in section 23 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 24 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 25 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 26 1 Findings and Recommendations were issued on February 16, 2023 (ECF No. 9), 27 recommending that plaintiff’s application for leave to proceed in forma pauperis be denied and that he be ordered to pay the filing fee. Plaintiff has now paid the filing fee (docket entry on 28 March 13, 2023) and the matter is now moot. 1 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 2 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 3 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 4 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 5 the court finds there are no exceptional circumstances in this case. 6 Screening Standards 7 Federal courts must engage in a preliminary screening of cases in which prisoners seek 8 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 9 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 10 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 11 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 12 relief.” Id. § 1915A(b). 13 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 14 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 15 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 16 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 17 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 19 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 20 U.S. 662, 679 (2009). 21 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 22 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 23 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 25 678. 26 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 27 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 2 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 3 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 4 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 Screening Order 6 The court screens plaintiff’s amended complaint (ECF No. 11) because it supercedes the 7 original complaint (ECF No. 1). Plaintiff’s claim arose while plaintiff was confined to California 8 State Prison, Sacramento. On October 15, 2021, plaintiff informed defendant correctional officer 9 Archie that his cellmate had stopped taking his medication and was harassing him because he is a 10 sex offender. ECF No. 11 at 3. Plaintiff asked Archie for a new cell and Archie denied his 11 request. Id. Two days later, on October 17, 2021, plaintiff’s cellmate hit him. The bone around 12 plaintiff’s left eye was broken in three places and he had fractured vertebrae near his neck. 13 Plaintiff also names the Warden as a defendant, alleging that the “incident occurred on the 14 warden’s watch.” Id. As discussed below, plaintiff fails to sufficiently allege that any defendant 15 violated his Eighth Amendment rights by failing to protect him from an assault. See Wilson v. 16 Seiter, 501 U.S. 294, 303 (1991) (concluding that failure to protect claim must be measured under 17 deliberate indifference standard). 18 A showing of deliberate indifference requires that a prison official “be aware of facts from 19 which the inference could be drawn that a substantial risk of serious harm exists, and . . . must 20 also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Liability arises only 21 where a prison official “knows that inmates face a substantial risk of serious harm and disregards 22 that risk by failing to take reasonable measures to abate it.” Id. at 847. Plaintiff alleges only that 23 he informed Archie that his cellmate was “harassing” him. Without more, plaintiff’s vague 24 complaint about his cellmate would be insufficient to alert Archie that plaintiff faced a substantial 25 risk of serious harm. In any amended complaint, plaintiff must allege specific facts 26 demonstrating that he informed Archie that his cellmate posed a specific and substantial risk of 27 harm to him and that Archie reacted with deliberate indifference. 28 ///// 1 Further, plaintiff’s claim against the Warden cannot survive screening. Plaintiff does not 2 allege that the Warden knew that plaintiff’s cellmate posed a safety threat to plaintiff, nor does he 3 allege that the Warden acted with deliberate indifference to plaintiff’s safety. Rather, plaintiff has 4 named the Warden as a defendant simply because of his supervisory role, which is not a proper 5 basis for liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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1 2 3 4 5 6 7 10 11 ROBERT EPPS, No. 2:23-cv-00135-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 ARCHIE, et al., 15 Defendants. 16 17 Plaintiff is confined to a state hospital and proceeds without counsel in an action brought 18 under 42 U.S.C. § 1983.1 In addition to filing a complaint (ECF No. 1) and an amended 19 complaint (ECF No. 11), plaintiff has filed two motions for appointment of counsel (ECF Nos. 6 20 & 10) and an “attachment to amended complaint” (ECF No. 12). 21 Requests for Appointment of Counsel 22 District courts lack authority to require counsel to represent indigent prisoners in section 23 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 24 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 25 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 26 1 Findings and Recommendations were issued on February 16, 2023 (ECF No. 9), 27 recommending that plaintiff’s application for leave to proceed in forma pauperis be denied and that he be ordered to pay the filing fee. Plaintiff has now paid the filing fee (docket entry on 28 March 13, 2023) and the matter is now moot. 1 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 2 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 3 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 4 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 5 the court finds there are no exceptional circumstances in this case. 6 Screening Standards 7 Federal courts must engage in a preliminary screening of cases in which prisoners seek 8 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 9 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 10 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 11 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 12 relief.” Id. § 1915A(b). 13 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 14 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 15 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 16 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 17 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 19 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 20 U.S. 662, 679 (2009). 21 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 22 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 23 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 25 678. 26 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 27 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 2 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 3 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 4 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 Screening Order 6 The court screens plaintiff’s amended complaint (ECF No. 11) because it supercedes the 7 original complaint (ECF No. 1). Plaintiff’s claim arose while plaintiff was confined to California 8 State Prison, Sacramento. On October 15, 2021, plaintiff informed defendant correctional officer 9 Archie that his cellmate had stopped taking his medication and was harassing him because he is a 10 sex offender. ECF No. 11 at 3. Plaintiff asked Archie for a new cell and Archie denied his 11 request. Id. Two days later, on October 17, 2021, plaintiff’s cellmate hit him. The bone around 12 plaintiff’s left eye was broken in three places and he had fractured vertebrae near his neck. 13 Plaintiff also names the Warden as a defendant, alleging that the “incident occurred on the 14 warden’s watch.” Id. As discussed below, plaintiff fails to sufficiently allege that any defendant 15 violated his Eighth Amendment rights by failing to protect him from an assault. See Wilson v. 16 Seiter, 501 U.S. 294, 303 (1991) (concluding that failure to protect claim must be measured under 17 deliberate indifference standard). 18 A showing of deliberate indifference requires that a prison official “be aware of facts from 19 which the inference could be drawn that a substantial risk of serious harm exists, and . . . must 20 also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Liability arises only 21 where a prison official “knows that inmates face a substantial risk of serious harm and disregards 22 that risk by failing to take reasonable measures to abate it.” Id. at 847. Plaintiff alleges only that 23 he informed Archie that his cellmate was “harassing” him. Without more, plaintiff’s vague 24 complaint about his cellmate would be insufficient to alert Archie that plaintiff faced a substantial 25 risk of serious harm. In any amended complaint, plaintiff must allege specific facts 26 demonstrating that he informed Archie that his cellmate posed a specific and substantial risk of 27 harm to him and that Archie reacted with deliberate indifference. 28 ///// 1 Further, plaintiff’s claim against the Warden cannot survive screening. Plaintiff does not 2 allege that the Warden knew that plaintiff’s cellmate posed a safety threat to plaintiff, nor does he 3 allege that the Warden acted with deliberate indifference to plaintiff’s safety. Rather, plaintiff has 4 named the Warden as a defendant simply because of his supervisory role, which is not a proper 5 basis for liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 6 For these reasons, plaintiff’s amended complaint is dismissed with leave to amend.2 7 Leave to Amend 8 Plaintiff is cautioned that any amended complaint must identify as a defendant only 9 persons who personally participated in a substantial way in depriving him of his constitutional 10 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 11 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 12 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 13 include any allegations based on state law that are so closely related to his federal allegations that 14 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 15 The amended complaint must also contain a caption including the names of all defendants. 16 Fed. R. Civ. P. 10(a). 17 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 18 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 19 multiple defendants. Id. 20 Any amended complaint must be written or typed so that it so that it is complete in itself 21 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 22 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 23 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 24 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
25 2 After plaintiff filed the amended complaint, he filed an “attachment to amended complaint,” containing additional allegations and a revised request for relief. ECF No. 12. To 26 add, omit, or correct information in the operative complaint, however, plaintiff must file an 27 amended complaint that is complete within itself. Filing separate documents that are intended to be read together as one is not the proper means of amending or supplementing a complaint. 28 Accordingly, the attachment is disregarded. 1 || being treated thereafter as non-existent.””) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 2 | 1967)). 3 Conclusion 4 Accordingly, it is ORDERED that: 5 1. The February 16, 2023 findings and recommendations (ECF No. 9) are withdrawn as 6 moot; 7 2. Plaintiffs application for leave to proceed in forma pauperis (ECF No. 7) is denied 8 as moot; 9 3. Plaintiff's requests for appointment of counsel (ECF Nos. 6 & 10) are denied 10 without prejudice; 11 4. Plaintiff's amended complaint (ECF No. 11) is dismissed with leave to amend 12 within 30 days of service of this order; 13 5. The “attachment” to the amended complaint (ECF No. 12) is disregarded; and 14 6. Failure to comply with any part of this this order may result in dismissal of this 15 action for the reasons stated herein. 16 17 || Dated: July 11, 2023. □□ PDEA UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28