1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY HAWKINS, Case No. 2:21-cv-02302-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 O. GOMEZ, et al., 15 Defendants. 16 17 18 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983. Before me is plaintiff’s motion to amend the complaint, motion for a 20 settlement conference, motion for an extension of time to file an amended complaint, and motion 21 for the appointment of counsel.1 ECF Nos. 42, 43, 47. Defendants oppose the first two motions. 22 ECF Nos. 44 & 45. 23 24
25 1 On August 11, 2023, plaintiff moved for an extension of time to file an amended complaint. ECF No. 47. The court is willing to give plaintiff additional time to amend, if he so 26 chooses, but in case plaintiff wishes to proceed on the proposed amended complaint filed on May 27 4, 2023, the court has screened that complaint. Because the complaint contains cognizable claims, plaintiff may either submit an additional amended complaint, or notify the court within 28 thirty days if he chooses to proceed on the May 4 complaint. 1 Background 2 This case proceeds on plaintiff’s original complaint, filed on December 13, 2021. ECF 3 No. 1. Plaintiff alleges that defendants O. Gomez, T. Delgado, F. Constanco, and four John Doe 4 defendants used excessive force during a cell extraction. I screened the complaint and found 5 service appropriate for all defendants, but service could only be effectuated on the named 6 defendants. ECF Nos. 13 & 26. Gomez, Delgado, and Constanco filed an answer in October 7 2022, and a discovery and scheduling order issued on March 3, 2023. ECF Nos. 26 & 38. 8 The Proposed Amended Complaint 9 In the proposed amended complaint, plaintiff elaborates on his claim against Gomez, 10 Delgado, and Constanco. ECF No. 43. Plaintiff states that he has severe mental disorders, 11 including schizophrenia, major depression, and post-traumatic stress disorder. Id. at 5. As a 12 result, he is a participant in the Mental Health Delivery System (“MHDS”) and receives 13 specialized care in the Enhanced Outpatient Program. Id. He alleges that officers working with 14 MHDS inmates are specially trained to deescalate conflicts with these inmates and to follow 15 specific procedures for, among other things, cell extractions. Id. at 5-7. 16 Plaintiff alleges that on March 2, 2021, he covered his windows because Gomez, Delgado, 17 and Constanco were denying him a phone call. ECF No. 43 at 6. Plaintiff complained to their 18 supervisor, who directed these defendants to provide plaintiff a call. Id. In response, Gomez 19 approached plaintiff’s cell door and said, “you want to cry to the sergeant about a phone call, well 20 now you[’re] not getting shit.” Id. Gomez, Delgado, Constanco, and several other officers then 21 violated institutional rules and procedures when they entered plaintiff’s cell and assaulted him. 22 Id. During the assault, Gomez yelled, “you think you[’re] tough, you little bitch, let’s see how 23 tough you are when I stick this up your ass.” Id. at 7. Delgado and Constanco held plaintiff 24 down while Gomez cut off his clothes and repeatedly sexually assaulted him with a baton, saying, 25 “how do you like it now, you still want [to] make a call.” Id. at 8. On their way out, Gomez, 26 Delgado, and Constanco took all of plaintiff’s bedding and clothing with them, leaving him in his 27 cell bleeding for three days. 28 1 Plaintiff seeks to add three nurses as new defendants: Jaye, Taylor, and J.P. He alleges 2 that during the three days he was in his cell after the assault, he pleaded for medical attention to 3 no avail. Id. at 9. Despite stopping at plaintiff’s cell door and acknowledging his physical 4 injuries, each nurse apologized and told plaintiff that the officers were preventing them from 5 helping him. Id. 6 Legal Standard 7 Federal Rule of Civil Procedure 15(a) provides: 8 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 9 (A) 21 days after serving it, or 10 (B) if the pleading is one to which a responsive pleading is 11 required, 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss under Rule 12(b), (c), or (f), 12 whichever is earlier. 13 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the 14 court’s leave. The court should freely give leave when justice so requires. 15 16 Fed. R. Civ. P. 15(a). 17 Rule 15(a) is to be applied liberally in favor of amendment and, in general, leave is to be 18 freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th 19 Cir. 1994).“In the absence of any apparent or declared reason—such as undue delay, bad faith or 20 dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of 21 allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules 22 require, be ‘freely given.’” Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) 23 (citations omitted). 24 Discussion 25 Defendants oppose plaintiff’s motion to amend on grounds of undue delay and misjoinder. 26 ECF No. 44. They argue that plaintiff’s additional allegations aim “to significantly and 27 materially alter his factual allegations against [them].” Id. at 2. I disagree. While plaintiff 28 1 alleges in the operative complaint that defendants assaulted him, his proposed amended complaint 2 includes additional details that neither contradict nor materially alter the allegations. 3 Defendants also argue that adding a new claim of medical indifference directed at the 4 nurse defendants is improper under Federal Rule of Civil Procedure 20. They point out that, 5 while the nurses’ alleged failure to treat arises from the excessive force inflicted by the 6 correctional officers, the legal claims involve separate facts and separate defendants. ECF No. 44 7 at 3-4. Rule 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right to 8 relief arises out of the same “transaction, occurrence, or series of transactions” and “any question 9 of law or fact common to all defendants will arise in the action.” However, unrelated claims that 10 involve different defendants must be brought in separate lawsuits. See George v. Smith, 507 F.3d 11 605, 607 (7th Cir. 2007) (holding that “[a] buckshot complaint that would be rejected if filed by a 12 free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched 13 him, D failed to pay a debt, and E infringed his copyright, all in different transactions—should be 14 rejected if filed by a prisoner”). 15 I find that plaintiff’s claim against the nurse defendants is not improperly joined with the 16 excessive force claim because “both claims are related in time and in fact and implicate questions 17 of law and fact common to defendants [Gomez, Delgado, and Constanco].” Exmundo v. Tilton, 18 2009 WL 211408, at *2 fn.1 (E.D. Cal. Jan. 28, 2009) (finding the plaintiff’s excessive force 19 claim to be properly joined with his medical indifference claim).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY HAWKINS, Case No. 2:21-cv-02302-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 O. GOMEZ, et al., 15 Defendants. 16 17 18 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983. Before me is plaintiff’s motion to amend the complaint, motion for a 20 settlement conference, motion for an extension of time to file an amended complaint, and motion 21 for the appointment of counsel.1 ECF Nos. 42, 43, 47. Defendants oppose the first two motions. 22 ECF Nos. 44 & 45. 23 24
25 1 On August 11, 2023, plaintiff moved for an extension of time to file an amended complaint. ECF No. 47. The court is willing to give plaintiff additional time to amend, if he so 26 chooses, but in case plaintiff wishes to proceed on the proposed amended complaint filed on May 27 4, 2023, the court has screened that complaint. Because the complaint contains cognizable claims, plaintiff may either submit an additional amended complaint, or notify the court within 28 thirty days if he chooses to proceed on the May 4 complaint. 1 Background 2 This case proceeds on plaintiff’s original complaint, filed on December 13, 2021. ECF 3 No. 1. Plaintiff alleges that defendants O. Gomez, T. Delgado, F. Constanco, and four John Doe 4 defendants used excessive force during a cell extraction. I screened the complaint and found 5 service appropriate for all defendants, but service could only be effectuated on the named 6 defendants. ECF Nos. 13 & 26. Gomez, Delgado, and Constanco filed an answer in October 7 2022, and a discovery and scheduling order issued on March 3, 2023. ECF Nos. 26 & 38. 8 The Proposed Amended Complaint 9 In the proposed amended complaint, plaintiff elaborates on his claim against Gomez, 10 Delgado, and Constanco. ECF No. 43. Plaintiff states that he has severe mental disorders, 11 including schizophrenia, major depression, and post-traumatic stress disorder. Id. at 5. As a 12 result, he is a participant in the Mental Health Delivery System (“MHDS”) and receives 13 specialized care in the Enhanced Outpatient Program. Id. He alleges that officers working with 14 MHDS inmates are specially trained to deescalate conflicts with these inmates and to follow 15 specific procedures for, among other things, cell extractions. Id. at 5-7. 16 Plaintiff alleges that on March 2, 2021, he covered his windows because Gomez, Delgado, 17 and Constanco were denying him a phone call. ECF No. 43 at 6. Plaintiff complained to their 18 supervisor, who directed these defendants to provide plaintiff a call. Id. In response, Gomez 19 approached plaintiff’s cell door and said, “you want to cry to the sergeant about a phone call, well 20 now you[’re] not getting shit.” Id. Gomez, Delgado, Constanco, and several other officers then 21 violated institutional rules and procedures when they entered plaintiff’s cell and assaulted him. 22 Id. During the assault, Gomez yelled, “you think you[’re] tough, you little bitch, let’s see how 23 tough you are when I stick this up your ass.” Id. at 7. Delgado and Constanco held plaintiff 24 down while Gomez cut off his clothes and repeatedly sexually assaulted him with a baton, saying, 25 “how do you like it now, you still want [to] make a call.” Id. at 8. On their way out, Gomez, 26 Delgado, and Constanco took all of plaintiff’s bedding and clothing with them, leaving him in his 27 cell bleeding for three days. 28 1 Plaintiff seeks to add three nurses as new defendants: Jaye, Taylor, and J.P. He alleges 2 that during the three days he was in his cell after the assault, he pleaded for medical attention to 3 no avail. Id. at 9. Despite stopping at plaintiff’s cell door and acknowledging his physical 4 injuries, each nurse apologized and told plaintiff that the officers were preventing them from 5 helping him. Id. 6 Legal Standard 7 Federal Rule of Civil Procedure 15(a) provides: 8 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 9 (A) 21 days after serving it, or 10 (B) if the pleading is one to which a responsive pleading is 11 required, 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss under Rule 12(b), (c), or (f), 12 whichever is earlier. 13 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the 14 court’s leave. The court should freely give leave when justice so requires. 15 16 Fed. R. Civ. P. 15(a). 17 Rule 15(a) is to be applied liberally in favor of amendment and, in general, leave is to be 18 freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th 19 Cir. 1994).“In the absence of any apparent or declared reason—such as undue delay, bad faith or 20 dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of 21 allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules 22 require, be ‘freely given.’” Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) 23 (citations omitted). 24 Discussion 25 Defendants oppose plaintiff’s motion to amend on grounds of undue delay and misjoinder. 26 ECF No. 44. They argue that plaintiff’s additional allegations aim “to significantly and 27 materially alter his factual allegations against [them].” Id. at 2. I disagree. While plaintiff 28 1 alleges in the operative complaint that defendants assaulted him, his proposed amended complaint 2 includes additional details that neither contradict nor materially alter the allegations. 3 Defendants also argue that adding a new claim of medical indifference directed at the 4 nurse defendants is improper under Federal Rule of Civil Procedure 20. They point out that, 5 while the nurses’ alleged failure to treat arises from the excessive force inflicted by the 6 correctional officers, the legal claims involve separate facts and separate defendants. ECF No. 44 7 at 3-4. Rule 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right to 8 relief arises out of the same “transaction, occurrence, or series of transactions” and “any question 9 of law or fact common to all defendants will arise in the action.” However, unrelated claims that 10 involve different defendants must be brought in separate lawsuits. See George v. Smith, 507 F.3d 11 605, 607 (7th Cir. 2007) (holding that “[a] buckshot complaint that would be rejected if filed by a 12 free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched 13 him, D failed to pay a debt, and E infringed his copyright, all in different transactions—should be 14 rejected if filed by a prisoner”). 15 I find that plaintiff’s claim against the nurse defendants is not improperly joined with the 16 excessive force claim because “both claims are related in time and in fact and implicate questions 17 of law and fact common to defendants [Gomez, Delgado, and Constanco].” Exmundo v. Tilton, 18 2009 WL 211408, at *2 fn.1 (E.D. Cal. Jan. 28, 2009) (finding the plaintiff’s excessive force 19 claim to be properly joined with his medical indifference claim). Here, plaintiff specifically 20 alleges that Gomez, Delgado, and Constanco directed the nurse defendants not to provide medical 21 care to plaintiff so as to cover up an excessive force incident. See ECF No. 1 at 10 (plaintiff’s 22 inmate grievance claiming that defendants “never let 7219 be done to cover up the injuries they 23 put on me.”).2 Plaintiff’s excessive force claim against Gomez, Delgado, and Constanco, and his 24 medical indifference claim against the proposed nurse defendants, thus arise out of the same 25 26
27 2 I take judicial notice of the California Department of Corrections and Rehabilitations’ (“CDCR”) Department Operations Manual (“DOM”). Fed. R. Evid. 201. A CDCR 7219 is a 28 Medical Report of Injury or Unusual Occurrence. See DOM § 51020.17.6. 1 “transaction, occurrence, or series of transactions.” Accordingly, I will grant plaintiff’s motion to 2 amend. 3 Screening Requirement 4 I. Screening and Pleading Requirements 5 A federal court must screen the complaint of any prisoner proceeding in forma pauperis. 6 See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and dismiss any portion 7 of the complaint that is frivolous or malicious, fails to state a claim upon which relief may be 8 granted, or seeks monetary relief from a defendant who is immune from such relief. Id. 9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 10 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 11 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 12 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 14 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 15 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 16 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 17 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 18 n.2 (9th Cir. 2006) (en banc) (citations omitted). 19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 21 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 24 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 25 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 26 II. Analysis 27 Based on the allegations in the first amended complaint, I find that plaintiff continues to 28 state an Eighth Amendment excessive force claim against defendants Gomez, Delgado, and 1 Constanco. He also states a First Amendment retaliation claim against these defendants based on 2 the timing of the assault and comments made during it regarding plaintiff’s complaint to their 3 supervisor. Furthermore, he states an Eighth Amendment medical indifference claim against 4 these defendants for their denial of medical treatment for three days after the assault. Finally, 5 plaintiff states an Eighth Amendment sexual assault claim against defendant Gomez. As for the 6 nurse defendants, I find service appropriate on plaintiff’s Eighth Amendment claim of medical 7 indifference. 8 Motion for a Settlement Conference 9 Plaintiff’s request for a settlement conference will be denied because the defendants have 10 stated that it would be unproductive and a waste of resources. See Local Rule 271(b)(4) 11 (voluntary consent of all parties necessary to set a settlement conference). 12 Motion for the Appointment of Counsel 13 The court does not find that appointment of counsel is warranted. Plaintiff does not have 14 a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 15 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. 16 See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The court can 17 request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request 18 an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. But 19 without a means to compensate counsel, the court will seek volunteer counsel only in exceptional 20 circumstances. In determining whether such circumstances exist, “the district court must evaluate 21 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 22 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 23 (internal quotation marks and citations omitted). 24 Plaintiff argues in his motion for counsel that he is unable to afford counsel, the issues are 25 complex, he has limited access to the law library, and he is untrained in the law. ECF No. 48. 26 Plaintiff attached documents indicating that he has low cognitive function, is mobility impaired, 27 and is in the mental health inpatient program. Id. at 5-7. While the court accepts plaintiff’s 28 statements about his disabilities and understands that it is difficult to litigate in prison, after 1 | considering factors for the appointment of counsel, the court finds no exceptional circumstances 2 | present. Plaintiff has proficiently litigated this action for nearly two years and, because he is in 3 | the process of amending his complaint, the court cannot conclude that he has demonstrated that 4 | that issues are complex or that he is likely to succeed on the merits. 5 Conclusion 6 Based on the foregoing, it is hereby ORDERED that: 7 1. Plaintiffs request for a settlement conference, ECF No. 42, is denied. 8 2. Plaintiffs motion to amend, ECF No. 43, is granted. 9 3. Plaintiff's motion for an extension of time to file an amended complaint, ECF No. 47, 10 | is granted. Plaintiff shall notify the court within thirty days from the date of this order if he 11 | wishes to either file an amended complaint or proceed on the May 4, 2023 complaint. If plaintiff 12 | chooses to proceed on the May 4 complaint, I will direct service for the defendants. 13 4. Plaintiffs motion for the appointment of counsel, ECF No. 48, is denied. 14 1s IT IS SO ORDERED.
Dated: _ August 21, 2023 q——— 17 JEREMY D. PETERSON 13 UNITED STATES MAGISTRATE JUDGE
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