(PC) Rodriguez v. Solano State Prison

• Court: District Court, E.D. California
• Decided: August 3, 2021
• Docket: 2:21-cv-00622
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO RODRIGUEZ, No. 2:21-cv-00622 DB P 12 Plaintiff, 13 v. ORDER 14 WARDEN, SOLANO STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se and in forma pauperis, seeks relief pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendants were negligent in providing plaintiff with medical 19 care. Before the court are plaintiff’s motions to proceed in forma pauperis (ECF Nos. 3, 11), 20 plaintiff’s motion for appointment of counsel (ECF No. 2), and plaintiff’s complaint for screening 21 (ECF No. 1). For the reasons set forth below, the court will grant plaintiff’s motion to proceed in 22 forma pauperis (ECF No. 11), deny plaintiff’s previous motion to proceed in forma pauperis 23 (ECF No. 3) as moot, and deny plaintiff’s motion for appointment of counsel (ECF No. 2). The 24 court will dismiss plaintiff’s complaint (ECF No. 1) with leave to amend. 25 //// 26 //// 27 //// 28 //// 1 IN FORMA PAUPERIS 2 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 3 1915(a). Accordingly, the request to proceed in forma pauperis (ECF No. 11) will be granted. 4 Plaintiff’s previous request to proceed in forma pauperis (ECF No. 3) will be denied as moot. 5 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 6 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 7 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 8 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 9 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 10 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 11 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 12 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 13 1915(b)(2). 14 SCREENING 15 I. Legal Standards 16 The court is required to screen complaints brought by prisoners seeking relief against a 17 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 18 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 19 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 20 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 21 U.S.C. § 1915A(b)(1) & (2). 22 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 23 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 24 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 25 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 26 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 27 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 28 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 1 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 2 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 3 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 4 However, in order to survive dismissal for failure to state a claim a complaint must 5 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 6 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 7 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 8 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 9 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 10 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 11 The Civil Rights Act under which this action was filed provides as follows: 12 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 13 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 14 or other proper proceeding for redress.

15 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 16 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 17 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 18 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 19 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 20 an act which he is legally required to do that causes the deprivation of which complaint is made.” 21 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 22 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 23 their employees under a theory of respondeat superior and, therefore, when a named defendant 24 holds a supervisorial position, the causal link between him and the claimed constitutional 25 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 26 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 27 //// 28 1 concerning the involvement of official personnel in civil rights violations are not sufficient. See 2 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 II. Linkage Requirement 4 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 5 that each defendant personally participated in the deprivation of his rights. See Jones v. 6 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 7 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 8 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 9 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 10 Government officials may not be held liable for the actions of their subordinates under a 11 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 12 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 13 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 14 violated the Constitution through his own individual actions by linking each named defendant 15 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 16 Id. at 676. 17 III. Allegations in the Complaint 18 Plaintiff states that, at all relevant times, he was a prisoner at California State Prison, 19 Solano (“SOL”). (ECF No. 1 at 2.) Plaintiff names approximately 18 individuals as defendants 20 in the complaint (Id. at 5, 8, 10) though it is unclear what the specific claims are as to each of 21 these defendants. 22 Plaintiff alleges the following in his complaint: plaintiff has a history of mental health 23 issues beginning at an unstated date after he was transferred to the custody of the California 24 Department of Corrections and Rehabilitation (“CDCR”) on March 17, 1997. (Id. at 8.) Plaintiff 25 received medication in connection with these mental health issues. (Id.) In 2008, plaintiff was 26 placed on suicide watch four to five times due to being in a state of depression. (Id.) Plaintiff 27 was removed from suicide watch sometime later that year. (Id.) 28 //// 1 On December 24, 2008, after plaintiff was taken off suicide watch, plaintiff informed an 2 unnamed “Add Seg Officer” that he was “hearing voices and seeing things.” (Id.) The officers 3 “belaughed [sic] at me as if it was a joke.” (Id.) Later that day, plaintiff also informed an 4 unnamed nurse what he was experiencing but “the nurse…laughed at me and she said she was 5 only there to pass out pills and medication.” (Id.) The nurse then handed plaintiff “two bags of 6 pills 90 of them.” (Id. at 9.) When plaintiff told the nurse that he was being given too many pills 7 “she laughed and said here is your medication and walked away without even checking to see if 8 she was giving me to [sic] many pills.” (Id.) Plaintiff heard voices telling him to take all of the 9 pills. (Id.) The following day, December 25, 2008, plaintiff took “30 Abiliftys and 60 10 Benedriles” and needed to be transported to the hospital for treatment. (Id. at 10.) This included 11 “pumping” the plaintiff’s stomach. (Id.) Plaintiff “was unconscious for at least three days or 12 longer” and spent a week in the hospital. (Id.) 13 At a later date, plaintiff’s hand was injured during an altercation with other inmates. (Id.) 14 Plaintiff had surgery to repair his hand. (Id.) Plaintiff never received “medical follow up care” 15 and the stitches from his hand were not removed until he was transferred to another institution. 16 (Id.) 17 IV. Does Plaintiff State a Claim under § 1983? 18 A. Possible Failure Exhaust Administrative Remedies 19 The complaint indicates that plaintiff may not have properly exhausted his administrative 20 remedies at SOL prior to filing the instant action. (See ECF No. 1 at 2.) (stating prison officials 21 did not respond to his administrative grievance and plaintiff “has done everything that he could 22 do under the sircumstances [sic] to comply with the exhaustion or requirements.”) As a 23 demonstration of the exhaustion of administrative remedies is not a pleading requirement (see 24 Wyatt v. Terhune, 315 F.3d 1108, 1112 (9th Cir. 2003)), and inmates are not required to 25 specifically plead or demonstrate exhaustion in their complaints (see Jones v. Bock, 549 U.S. 199, 26 216 (2007)), the court will conduct a substantive screening of this action at this time. However, 27 the plaintiff is warned that should defendants be ordered to respond to this action, any failure to 28 exhaust that can be substantiated may be proffered by defendants as an affirmative defense in 1 support of the dismissal of this action. See generally Albino v. Baca, 747 F.3d 1162, 1166 (9th 2 Cir. 2014) (stating failure to exhaust is affirmative defense defendants must plead and prove). 3 B. Substantive Claims 4 Plaintiff states that he is bringing the claims in his complaint under 42 U.S.C. § 1983. 5 (ECF No. 1 at 1.) The complaint does not specify what constitutional rights the plaintiff alleges 6 the defendants violated. From examining plaintiff’s complaint, there are two identifiable claims 7 that plaintiff is seeking to bring. The first occurred on December 24, 2008, when plaintiff was 8 allegedly provided with a large amount of medication which plaintiff took the following day, 9 resulting in his hospitalization. (Id. at 8-10.) The second occurred at an undisclosed later date 10 when plaintiff was not given post-surgery care for hand surgery he had received. (Id. at 10.) 11 Both claims appear to be best described as Eighth Amendment deliberate indifference to medical 12 need claims and will be analyzed as such. 13 Plaintiff may have intended to bring additional claims. However, only the two claims 14 mentioned are identified in the complaint’s current form. In an amended complaint, plaintiff 15 should be sure to identify what constitutional violations he is alleging and how each defendant 16 participated in those violations. 17 1. Legal Standard - Deliberate Indifference to Medical Needs 18 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 19 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 20 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 21 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 22 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 23 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 24 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 25 If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner 26 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference 27 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has 28 two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s 1 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 2 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 3 A medical need is serious “if the failure to treat the prisoner’s condition could result in 4 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 5 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 6 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. 7 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 8 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 9 825, 834 (1994). 10 If a prisoner establishes the existence of a serious medical need, he must show that prison 11 officials responded to the serious medical need with deliberate indifference. See Id. at 834. In 12 general, deliberate indifference may be shown when prison officials deny, delay, or intentionally 13 interfere with medical treatment, or may be shown by the way in which prison officials provide 14 medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). 15 Before it can be said that a prisoner’s civil rights have been abridged with regard to 16 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 17 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 18 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 19 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 20 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 21 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 22 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 23 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. 24 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 25 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 26 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 27 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 28 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 1 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 2 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 3 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to 4 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 5 Finally, mere differences of opinion between a prisoner and prison medical staff or 6 between medical professionals as to the proper course of treatment for a medical condition do not 7 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 8 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 9 F.2d 1337, 1344 (9th Cir. 1981). 10 2. Analysis 11 i. Negligence in Providing Plaintiff with Additional Medication 12 Plaintiff claims that his constitutional rights were violated by an unidentified nurse 13 “neglect[ing] to check my medications to see how many pills to give me” (ECF No. 1 at 10) and 14 providing plaintiff with more medication than necessary (Id. at 9). Plaintiff alleges that this was 15 the result of “medical neglect and negligence.” (Id. at 11.) As stated above, plaintiff has not 16 specified what constitutional rights were violated. However, this appears to be most accurately 17 viewed as an Eighth Amendment claim for deliberate indifference to plaintiff’s serious medical 18 needs. 19 For a claim of deliberate indifference to medical need to succeed, more than negligence or 20 medical malpractice is necessary. Broughton, 622 F.2d at 460; Farmer, 511 U.S. at 835. Plaintiff 21 must allege facts that show that the defendant’s acted with deliberate indifference. Id. As 22 plaintiff appears to claim that he was harmed due to the unidentified nurse’s negligence, not her 23 deliberate indifference, plaintiff has failed to allege facts sufficient to allege facts necessary to 24 state a cognizable claim. 25 As such, this claim will be dismissed with leave to amend. In an amended complaint, 26 defendant must be sure to identify particular defendants and how they participated in the denial of 27 plaintiff’s constitutional rights. 28 //// 1 ii. Failure to Provide Post-Surgery Care 2 Plaintiff also alleges that he was not provided with post-treatment care following surgery 3 he received on his hand. (ECF No. 1 at 10.) Specifically, plaintiff alleges stitches that were 4 placed in his hand during surgery were not removed until he was later transferred to another 5 institution. (Id.) As with the previous claim, this also appears to be an Eighth Amendment claim 6 for deliberate indifference to plaintiff’s serious medical needs. 7 Plaintiff again alleges in this claim that plaintiff’s harm resulted from “medical neglect” 8 and “medical negligence.” (Id.) As stated above, an allegation of negligence is insufficient to 9 establish deliberate indifference by the defendants. Broughton, 622 F.2d at 460; Farmer, 511 10 U.S. at 835. As such, plaintiff has failed to allege facts sufficient to state a claim for deliberate 11 indifference to medical needs. 12 Additionally, plaintiff has not identified any defendant specifically connected with this 13 claim nor has plaintiff alleged how individual defendants participated in the deprivation of 14 plaintiff’s constitutional rights. To bring a claim under § 1983, plaintiff must bring identify 15 defendants who personally participated in depriving plaintiff of his constitutional rights. See 16 Jones, 297 F.3d at 934. Plaintiff must identify the actions taken by the defendants and show an 17 actual link between those actions and the deprivation of plaintiff’s rights. See Ortez, 88 F.3d at 18 809. As plaintiff has not identified which defendants were involved in this claim and how they 19 participated in depriving plaintiff of his constitutional rights, plaintiff has not alleged facts 20 sufficient to state this claim under § 1983. 21 For these reasons, this claim will be dismissed with leave to amend as plaintiff has failed 22 to allege sufficient facts to state a claim for deliberate indifference in violation of his Eighth 23 Amendment rights. 24 AMENDING THE COMPLAINT 25 This court finds above that plaintiff’s complaint fails to state a cognizable claim. 26 Plaintiff’s complaint will be dismissed with leave to file an amended complaint stating claims 27 against any defendants identified in the complaint or any other defendant. 28 //// 1 If plaintiff chooses to file an amended complaint, he must address the problems with his 2 complaint that are explained above. Any amended complaint must be complete in itself. The 3 court cannot refer to a prior complaint to understand the plaintiff’s claims. 4 In an amended complaint plaintiff must clearly identify each defendant and the action that 5 defendant took that violated plaintiff’s constitutional rights. The court is not required to review 6 exhibits to determine what plaintiff’s charging allegations are as to each named defendant. If 7 plaintiff wishes to add a claim, he must include it in the body of the complaint. The charging 8 allegations must be set forth in the amended complaint, so defendants have fair notice of the 9 claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support 10 of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. 11 Civ. P. 8(a). 12 Any amended complaint must show the federal court has jurisdiction, the action is brought 13 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 14 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 15 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 16 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 17 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 18 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 19 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 20 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 21 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 22 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 23 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 24 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 25 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 26 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 27 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 28 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 1 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 2 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 3 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 4 An amended complaint must be complete in itself, without reference to any prior pleading. 5 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 6 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 7 evidentiary support for his allegations, and for violation of this rule, the court may impose 8 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 9 USAGE OF “DOE” DEFENDANTS 10 The use of John Does in pleading practice is generally disfavored – but it is not prohibited. 11 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 12 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). 13 Eventually, plaintiff may be afforded an opportunity for limited, preliminary discovery to identify 14 the names of the John Does “unless it is clear that discovery would not uncover their identities,” 15 Gillespie, 629 F.2d at 642, and only after the court is satisfied he has exhausted every other 16 possibility of finding their names. Since by this order plaintiff will be granted leave to file an 17 amended complaint, he must use the time given to amend to do everything he can to supply the 18 names of the Doe defendant without further assistance from the court. He may seek extensions of 19 time for the filing of an amended complaint for that purpose if necessary. 20 Further, “John Doe” defendant liability must also be properly alleged. A plaintiff may use 21 “Doe” designations to refer to defendants whose names are unknown; however, he must number 22 them in the complaint, e.g., “John Doe 1,” “John Doe 2,” so that each numbered John Doe refers 23 to a specific person. If plaintiff chooses to file an amended complaint, he shall either name the 24 defendants involved or list the Doe defendants involved and describe what each did to violate his 25 rights. If plaintiff can only list these defendants as John Doe, plaintiff should allege specific acts 26 that each Doe defendant did, such as “John Doe 1 did X” and John Doe 2 did Y.” Alexander v. 27 Tilton, No. 1:07-cv-0759 LJO DLB, 2009 WL 464486, *5 (E.D. Cal. Feb. 24, 2009). 28 //// 1 MOTION FOR APPOINTMENT OF COUNSEL 2 On December 7, 2020, plaintiff filed a document entitled “Request for Accommodations 3 by Persons with Disabilities and Response.” (ECF No. 2.) Given the purpose of this document is 4 to request that the court appoint counsel to assist the plaintiff (Id.), this appears to be a motion for 5 appointment of counsel. 6 The United States Supreme Court has ruled that district courts lack authority to require 7 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 8 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 9 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 10 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 11 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 12 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 13 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 14 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 15 common to most prisoners, such as lack of legal education and limited law library access, do not 16 establish exceptional circumstances that would warrant a request for voluntary assistance of 17 counsel. 18 In the present case, the court does not find the required exceptional circumstances. As the 19 court will find that plaintiff’s complaint does not state a cognizable claim, the court is unable to 20 determine plaintiff’s likelihood of success on the merits. Additionally, it does not currently appear 21 that plaintiff is unable to articulate claims pro se and the claims plaintiff seeks to bring do not 22 seem to involve complex legal issues. As such, plaintiff’s motion for appointment of counsel will 23 be denied without prejudice to its renewal at a later stage of the proceedings. 24 //// 25 //// 26 //// 27 //// 28 //// 1 CONCLUSION 2 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as 3 | follows: 4 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 11) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 7 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 8 to the Director of the California Department of Corrections and Rehabilitation filed 9 concurrently herewith. 10 3. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 3) is denied as 11 moot. 12 4, Plaintiffs motion for appointment of counsel (ECF No. 2) is denied. 13 5. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 14 6. Plaintiff is granted thirty days from the date of service of this order to file an amended 15 complaint that complies with the requirements of the Civil Rights Act, the Federal 16 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 17 must bear the docket number assigned to this case and must be labeled “First 18 Amended Complaint.” 19 7. Plaintiff is warned that his failure to comply with this order will result in a 20 recommendation that this action be dismissed. 21 || Dated: August 2, 2021 22 23 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 DB:14 28 || DB:1/Orders/Prisoner/Civil Rights/S/rod10622.scrn 13

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