KENNETH GODOY, No. 2:22-cv-01673-EFB (PC) Plaintiff, v. ORDER A. FAVELA, et al., Defendants. Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint and an amended complaint, he has filed an application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and a request for the appointment of counsel. Application to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). Request for Appointment of Counsel District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case. Screening Standards Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. ///// Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Screening Order Liberally construed, plaintiff’s amended complaint (ECF No. 5) states a potentially cognizable claim of Eighth Amendment excessive force against defendant Favela, and against defendant Weatherwax for his failure to intervene. See ECF No. 5 at 6, 8-11, 16, 18-22 (alleging that on February 4, 2020, Favela took out his anger and frustration on plaintiff, who has a severe mobility disability, by slamming plaintiff, half-naked, into a shower door, throwing plaintiff to the ground, and digging his knee into plaintiff’s back, while Weatherwax “stood by” and “refus[ed] to intervene”). The allegations against the other named defendants – Fleshman, Appleberry, and Lozano – cannot survive screening. None of these defendants is alleged to have participated in the alleged use of excessive force. Appleberry and Lozano had no involvement in the alleged use of excessive force and Fleshman’s alleged involvement is limited to restraining plaintiff in waist chains and leg irons after the alleged use of excessive force. Id. at 10-12. As for Appleberry and Lozano, plaintiff alleges that they mishandled plaintiff’s administrative appeal. Id. at 13-16. Any failure to properly process or respond to an administrative appeal, however, is not actionable, as there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Plaintiff also seems to have named Warden Lozano as a defendant simply because of his role as a supervisor, which is also not a proper basis for liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). ///// Plaintiff also alleges that his Fourteenth Amendment equal protection rights were violated. ECF No. 5 at 23-24. There is no basis for an equal protection claim because plaintiff does not allege that any defendant acted with an intent or purpose to discriminate against him because of his membership in any protected class. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166- 67 (9th Cir. 2005). To the extent plaintiff also intends to allege a Fourteenth Amendment due process claim, the court notes that there is also no basis for such a claim because plaintiff has not alleged he was deprived of a property or liberty interest that is protected by the Due Process Clause. See Walker v. Gomez, 370 F.3d
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KENNETH GODOY, No. 2:22-cv-01673-EFB (PC) Plaintiff, v. ORDER A. FAVELA, et al., Defendants. Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint and an amended complaint, he has filed an application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and a request for the appointment of counsel. Application to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). Request for Appointment of Counsel District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case. Screening Standards Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. ///// Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Screening Order Liberally construed, plaintiff’s amended complaint (ECF No. 5) states a potentially cognizable claim of Eighth Amendment excessive force against defendant Favela, and against defendant Weatherwax for his failure to intervene. See ECF No. 5 at 6, 8-11, 16, 18-22 (alleging that on February 4, 2020, Favela took out his anger and frustration on plaintiff, who has a severe mobility disability, by slamming plaintiff, half-naked, into a shower door, throwing plaintiff to the ground, and digging his knee into plaintiff’s back, while Weatherwax “stood by” and “refus[ed] to intervene”). The allegations against the other named defendants – Fleshman, Appleberry, and Lozano – cannot survive screening. None of these defendants is alleged to have participated in the alleged use of excessive force. Appleberry and Lozano had no involvement in the alleged use of excessive force and Fleshman’s alleged involvement is limited to restraining plaintiff in waist chains and leg irons after the alleged use of excessive force. Id. at 10-12. As for Appleberry and Lozano, plaintiff alleges that they mishandled plaintiff’s administrative appeal. Id. at 13-16. Any failure to properly process or respond to an administrative appeal, however, is not actionable, as there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Plaintiff also seems to have named Warden Lozano as a defendant simply because of his role as a supervisor, which is also not a proper basis for liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). ///// Plaintiff also alleges that his Fourteenth Amendment equal protection rights were violated. ECF No. 5 at 23-24. There is no basis for an equal protection claim because plaintiff does not allege that any defendant acted with an intent or purpose to discriminate against him because of his membership in any protected class. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166- 67 (9th Cir. 2005). To the extent plaintiff also intends to allege a Fourteenth Amendment due process claim, the court notes that there is also no basis for such a claim because plaintiff has not alleged he was deprived of a property or liberty interest that is protected by the Due Process Clause. See Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). Plaintiff may either proceed with the Eighth Amendment excessive force claim against defendants Favela and Weatherwax only or he may amend his complaint to attempt to assert additional claims against the other named defendants. He may not, however, change the nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff is not obligated to amend his complaint. Leave to Amend Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation). Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). ] The court cautions plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. See Local Rule 110. Conclusion Accordingly, it is ORDERED that: 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED. 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the California Department of Corrections and Rehabilitation filed concurrently herewith. 3. Plaintiff's request for the appointment of counsel (ECF No. 3) is DENIED without prejudice. 4. Plaintiff's amended complaint (ECF No. 5) alleges, for screening purposes, a potentially cognizable Eighth Amendment excessive force claim against defendants Favela and Weatherwax. 5. All other claims (including those against defendants Fleshman, Appleberry, and Lozano) are dismissed with leave to amend within 30 days of service of this order. Plaintiff is not obligated to amend his complaint. 6. Within thirty days plaintiff shall return the notice below advising the court whether he elects to proceed with the cognizable claims or file an amended complaint. If the former option is selected and returmed, the court will enter an order directing service at that time. 7. Failure to comply with any part of this this order may result in dismissal of this action. Dated: November 29, 2022. □□ PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE
KENNETH GODOY, No. 2:22-cv-01673-EFB (PC) Plaintiff, v. NOTICE A. FAVELA, et al., Defendants. In accordance with the court’s Screening Order, plaintiff hereby elects to: (1) ______ proceed only with the Eighth Amendment excessive force claim against defendants Favela and Weatherwax; OR (2) ______ delay serving any defendant and file an amended complaint. _________________________________ Plaintiff Dated: