1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ANDREW JESSE HERNANDEZ, Sr., Case No. 2:21-cv-01629-JDP (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA 11 v. PAUPERIS AND DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 12 BRIAN KIBLER, et al., COUNSEL
13 Defendants. ECF Nos. 6, 7, & 10 14 SCREENING ORDER THAT PLAINTIFF: 15 (1) STAND BY HIS COMPLAINT SUBJECT TO DISMISSAL, OR 16 (2) FILE AN AMENDED 17 COMPLAINT 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 Plaintiff Andrew Hernandez, a state prisoner proceeding without counsel in this action 22 under 42 U.S.C. § 1983, alleges that defendants took his medical equipment and discontinued his 23 pain medication without either cause or adequate process. ECF No. 1. He claims that these 24 deprivations constitute violations of the Americans with Disabilities Act (“ADA”) and the Fourth, 25 Eighth, and Fourteenth Amendments. Although his claims are not adequately pled, I will give 26 plaintiff an opportunity to amend his complaint before recommending that it be dismissed. 27 Additionally, I will grant plaintiff’s applications to proceed in forma pauperis, ECF Nos. 7 & 10, 28 and deny his motion for appointment of counsel, ECF No. 6. 1 Motion To Appoint Counsel 2 Plaintiff has filed a motion requesting the appointment of counsel. ECF No. 6. Plaintiff 3 does not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 4 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to 5 represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 6 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) 7 (“The court may request an attorney to represent any person unable to afford counsel”); Rand, 8 113 F.3d at 1525. However, without a means to compensate counsel, the court will seek 9 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 10 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 11 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 12 involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 13 Plaintiff claims that his disabilities make it difficult for him to read, write, and understand 14 case materials, and he asks that the court assign counsel to assist him. See ECF No. 6. While I do 15 not question the challenges posed by plaintiff’s disabilities, he has nonetheless proven capable of 16 filing legible and coherent pleadings, notwithstanding those pleadings’ substantive deficiencies. 17 Moreover, considering that his factual allegations do not state a claim in their current form, he has 18 not demonstrated a likelihood of success on the merits. I will therefore deny his request for 19 counsel at this time. 20 Screening and Pleading Requirements 21 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 22 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 23 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 24 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 25 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 26 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 27 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 28 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 1 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 3 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 4 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 5 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 6 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 7 n.2 (9th Cir. 2006) (en banc) (citations omitted). 8 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 9 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 10 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 11 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 12 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 13 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 14 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 15 Analysis 16 Plaintiff alleges that defendants collectively participated in confiscating or seizing his 17 “[Americans with Disabilities Act (“ADA”)] Durable Medical Equipment” from him and in 18 discontinuing his pain medication, in both cases without adequate cause or process. See ECF 19 No. 1 at 3-8. He variously characterizes these allegations as violations of the ADA and the 20 Fourth, Eighth, and Fourteenth Amendments, and he claims that the deprivations have caused him 21 to endure unnecessary pain and suffering. Id. 22 While the wrongful seizure of necessary medical equipment or medication by prison 23 employees can, in some cases, give rise to legal liability, plaintiff’s allegations do not provide 24 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. 25 His threadbare allegations fail to identify what medical equipment was taken, how he used or 26 relied on it, or the factual context surrounding the alleged deprivations. See ECF No. 1. Beyond 27 stating that “all [defendants] actively took part in one form or another,” id. at 4, plaintiff identifies 28 neither specific actions taken by the defendants nor each defendant’s role in plaintiff’s 1 | incarceration or medical care. Ultimately, plaintiffs allegations amount to the sort of “the- 2 | defendant-unlawfully-harmed-me accusation” that the Supreme Court has held insufficient to 3 | state aclaim. Ashcroft, 556 U.S. at 678. 4 I will allow plaintiff a chance to amend his complaint before recommending that this 5 | action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 6 | will supersede the current complaint. See Lacey v. Maricopa Cnty, 693 F. 3d 896, 907 n.1 (9th 7 | Cir. 2012) (en banc).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ANDREW JESSE HERNANDEZ, Sr., Case No. 2:21-cv-01629-JDP (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA 11 v. PAUPERIS AND DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 12 BRIAN KIBLER, et al., COUNSEL
13 Defendants. ECF Nos. 6, 7, & 10 14 SCREENING ORDER THAT PLAINTIFF: 15 (1) STAND BY HIS COMPLAINT SUBJECT TO DISMISSAL, OR 16 (2) FILE AN AMENDED 17 COMPLAINT 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 Plaintiff Andrew Hernandez, a state prisoner proceeding without counsel in this action 22 under 42 U.S.C. § 1983, alleges that defendants took his medical equipment and discontinued his 23 pain medication without either cause or adequate process. ECF No. 1. He claims that these 24 deprivations constitute violations of the Americans with Disabilities Act (“ADA”) and the Fourth, 25 Eighth, and Fourteenth Amendments. Although his claims are not adequately pled, I will give 26 plaintiff an opportunity to amend his complaint before recommending that it be dismissed. 27 Additionally, I will grant plaintiff’s applications to proceed in forma pauperis, ECF Nos. 7 & 10, 28 and deny his motion for appointment of counsel, ECF No. 6. 1 Motion To Appoint Counsel 2 Plaintiff has filed a motion requesting the appointment of counsel. ECF No. 6. Plaintiff 3 does not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 4 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to 5 represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 6 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) 7 (“The court may request an attorney to represent any person unable to afford counsel”); Rand, 8 113 F.3d at 1525. However, without a means to compensate counsel, the court will seek 9 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 10 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 11 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 12 involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 13 Plaintiff claims that his disabilities make it difficult for him to read, write, and understand 14 case materials, and he asks that the court assign counsel to assist him. See ECF No. 6. While I do 15 not question the challenges posed by plaintiff’s disabilities, he has nonetheless proven capable of 16 filing legible and coherent pleadings, notwithstanding those pleadings’ substantive deficiencies. 17 Moreover, considering that his factual allegations do not state a claim in their current form, he has 18 not demonstrated a likelihood of success on the merits. I will therefore deny his request for 19 counsel at this time. 20 Screening and Pleading Requirements 21 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 22 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 23 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 24 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 25 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 26 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 27 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 28 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 1 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 3 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 4 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 5 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 6 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 7 n.2 (9th Cir. 2006) (en banc) (citations omitted). 8 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 9 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 10 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 11 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 12 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 13 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 14 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 15 Analysis 16 Plaintiff alleges that defendants collectively participated in confiscating or seizing his 17 “[Americans with Disabilities Act (“ADA”)] Durable Medical Equipment” from him and in 18 discontinuing his pain medication, in both cases without adequate cause or process. See ECF 19 No. 1 at 3-8. He variously characterizes these allegations as violations of the ADA and the 20 Fourth, Eighth, and Fourteenth Amendments, and he claims that the deprivations have caused him 21 to endure unnecessary pain and suffering. Id. 22 While the wrongful seizure of necessary medical equipment or medication by prison 23 employees can, in some cases, give rise to legal liability, plaintiff’s allegations do not provide 24 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. 25 His threadbare allegations fail to identify what medical equipment was taken, how he used or 26 relied on it, or the factual context surrounding the alleged deprivations. See ECF No. 1. Beyond 27 stating that “all [defendants] actively took part in one form or another,” id. at 4, plaintiff identifies 28 neither specific actions taken by the defendants nor each defendant’s role in plaintiff’s 1 | incarceration or medical care. Ultimately, plaintiffs allegations amount to the sort of “the- 2 | defendant-unlawfully-harmed-me accusation” that the Supreme Court has held insufficient to 3 | state aclaim. Ashcroft, 556 U.S. at 678. 4 I will allow plaintiff a chance to amend his complaint before recommending that this 5 | action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 6 | will supersede the current complaint. See Lacey v. Maricopa Cnty, 693 F. 3d 896, 907 n.1 (9th 7 | Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 8 | without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 9 | complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 10 | complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 11 | defendant’s involvement in sufficient detail. The amended complaint should be titled “First 12 | Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 13 | amended complaint, I will recommend that this action be dismissed. 14 Accordingly, it is ORDERED that: 15 1. Plaintiff's application to proceed in forma pauperis, ECF Nos. 7 & 10, is granted. 16 2. Plaintiffs motion to appoint counsel, ECF No. 6, is denied. 17 3. Within thirty days from the service of this order, plaintiff must either file an 18 | Amended Complaint or advise the court he wishes to stand by his current complaint. If he selects 19 | the latter option, I will recommend that this action be dismissed. 20 4. Failure to comply with this order may result in the dismissal of this action. 21 5. The Clerk of Court is directed to send plaintiff a complaint form. 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ May 10, 2022 □□ 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE
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