1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-cv-0147-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 C. SADLER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court dismissed his complaint with leave to amend on December 12, 2019 for 19 failure to state a cognizable claim. ECF No. 9. Plaintiff has filed an amended complaint, which 20 is before the court for screening under 28 U.S.C. § 1915A. ECF No. 14. Plaintiff also seeks 21 appointment of counsel. ECF No. 16. 22 I. Motion for Appointment of Counsel 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 25 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct., 490 U.S. 296, 26 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance 27 of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 28 ///// 1 Without a reasonable method of securing and compensating counsel, the court can seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 The test for exceptional circumstances requires the court to evaluate plaintiff’s likelihood of 7 success on the merits and the ability of plaintiff to articulate his claims pro se in light of the 8 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 9 Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to 10 most prisoners, such as lack of legal education and limited law library access, do not establish 11 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 12 Here, plaintiff asks for counsel because he speaks only Spanish. However, as plaintiff has 13 been informed in another action, his poor English is not per se an exceptional circumstance. Ruiz 14 v. Arakaki, No. 1:170cv091494-AWI-SAB (PC), 2018 U.S. Dist. LEXIS 195271, at *1-3 (E.D. 15 Cal. Nov. 15, 2018). The record in this action reveals that, up to this point, plaintiff has been able 16 to communicate his claims and respond to court orders. While his English is not perfect, it is 17 intelligible. In addition, at this early stage of the case the court cannot evaluate plaintiff’s 18 chances of success on the merits, but his claims are (excessive force and, possibly, failure to 19 protect) are commonplace and do not typically present complex legal issues. Accordingly, the 20 motion for appointment of counsel is denied without prejudice. As the case develops, plaintiff 21 may again seek appointment of counsel if he believes that he cannot articulate his claims 22 effectively. 23 II. Screening 24 A. Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 15 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 19 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 20 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 21 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 22 B. Analysis 23 Plaintiff claims that defendant Sadler, a correctional officer, used excessive force against 24 him on August 22, 2018 during an escort from the prison law library. ECF No. 14 at 3. While 25 Sadler was escorting plaintiff, and defendant Anderson, also a correctional officer, was escorting 26 another inmate (Rojas), Rojas kicked at plaintiff. Id. Anderson immediately placed Rojas in a 27 prone position. Id. Then, without any warning or order to get down, defendant Sadler threw his 28 body weight on plaintiff, sending him violently to the floor. Id. Plaintiff claims that this action 1 was unnecessary to restore order or protect plaintiff, because Anderson had already secured Rojas 2 in a prone position and plaintiff remained quietly next to Sadler. Id. Plaintiff sustained injuries to 3 his hand, neck, and head and lost consciousness for up to five minutes. Id. 4 The Eighth Amendment prohibits prison officials from using excessive force against 5 prisoners. However, force does not amount to a constitutional violation if it is applied in a good 6 faith effort to restore discipline and order and “not maliciously and sadistically for the very 7 purpose of causing harm.” Whitley v.
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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 ROGELIO MAY RUIZ, No. 2:19-cv-0147-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 C. SADLER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court dismissed his complaint with leave to amend on December 12, 2019 for 19 failure to state a cognizable claim. ECF No. 9. Plaintiff has filed an amended complaint, which 20 is before the court for screening under 28 U.S.C. § 1915A. ECF No. 14. Plaintiff also seeks 21 appointment of counsel. ECF No. 16. 22 I. Motion for Appointment of Counsel 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 25 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct., 490 U.S. 296, 26 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance 27 of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 28 ///// 1 Without a reasonable method of securing and compensating counsel, the court can seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 The test for exceptional circumstances requires the court to evaluate plaintiff’s likelihood of 7 success on the merits and the ability of plaintiff to articulate his claims pro se in light of the 8 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 9 Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to 10 most prisoners, such as lack of legal education and limited law library access, do not establish 11 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 12 Here, plaintiff asks for counsel because he speaks only Spanish. However, as plaintiff has 13 been informed in another action, his poor English is not per se an exceptional circumstance. Ruiz 14 v. Arakaki, No. 1:170cv091494-AWI-SAB (PC), 2018 U.S. Dist. LEXIS 195271, at *1-3 (E.D. 15 Cal. Nov. 15, 2018). The record in this action reveals that, up to this point, plaintiff has been able 16 to communicate his claims and respond to court orders. While his English is not perfect, it is 17 intelligible. In addition, at this early stage of the case the court cannot evaluate plaintiff’s 18 chances of success on the merits, but his claims are (excessive force and, possibly, failure to 19 protect) are commonplace and do not typically present complex legal issues. Accordingly, the 20 motion for appointment of counsel is denied without prejudice. As the case develops, plaintiff 21 may again seek appointment of counsel if he believes that he cannot articulate his claims 22 effectively. 23 II. Screening 24 A. Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 15 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 19 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 20 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 21 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 22 B. Analysis 23 Plaintiff claims that defendant Sadler, a correctional officer, used excessive force against 24 him on August 22, 2018 during an escort from the prison law library. ECF No. 14 at 3. While 25 Sadler was escorting plaintiff, and defendant Anderson, also a correctional officer, was escorting 26 another inmate (Rojas), Rojas kicked at plaintiff. Id. Anderson immediately placed Rojas in a 27 prone position. Id. Then, without any warning or order to get down, defendant Sadler threw his 28 body weight on plaintiff, sending him violently to the floor. Id. Plaintiff claims that this action 1 was unnecessary to restore order or protect plaintiff, because Anderson had already secured Rojas 2 in a prone position and plaintiff remained quietly next to Sadler. Id. Plaintiff sustained injuries to 3 his hand, neck, and head and lost consciousness for up to five minutes. Id. 4 The Eighth Amendment prohibits prison officials from using excessive force against 5 prisoners. However, force does not amount to a constitutional violation if it is applied in a good 6 faith effort to restore discipline and order and “not maliciously and sadistically for the very 7 purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986); Hudson v. McMillian, 8 503 U.S. 1, 7 (1992); Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). An excessive 9 force claim under the Eighth Amendment “necessarily involves a more culpable mental state” 10 than that required under the Fourth Amendment’s unreasonable seizures restriction. Clement v. 11 Gomez, 298 F.3d 898, 903 (9th Cir. 2002). “For this reason, under the Eighth Amendment, we 12 look for malicious and sadistic force, not merely objectively unreasonable force.” Id. To 13 constitute cruel and unusual punishment, use of physical must be repugnant to the conscience of 14 mankind. Hudson, 503 U.S. at 9-10. 15 The relevant factors to consider in evaluating a claim of excessive force in the prison 16 context are: (1) the extent of the injury suffered by an inmate; (2) the need for the application of 17 force; (3) the relationship between that need and the amount of force used; (4) the threat 18 reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity 19 of a forceful response. Hudson, 503 U.S. at 7; Martinez, 323 F.3d at 1184. In considering these 20 factors, prison authorities “should be accorded wide-ranging deference in the adoption and 21 execution of policies and practices that in their judgment are needed to preserve internal order and 22 discipline and to maintain institutional security.” Whitley, 475 U.S. at 321 (quoting Bell v. 23 Wolfish, 441 U.S. 520, 547 (1970)). The extent of a prisoner's injury is a factor that may suggest 24 whether the use of force could plausibly have been thought necessary in a particular situation. Id. 25 For the limited purposes of screening under § 1915A, plaintiff has stated a potentially 26 cognizable claim that defendant Sadler’s use of force against him was excessive in violation of 27 the Eighth Amendment. 28 ///// 1 Plaintiff also claims that defendant Anderson violated CDCR rules during the escort by 2 allowing Rojas to walk close enough to plaintiff to kick at him. This claim must be dismissed 3 because there is no independent cause of action for violation of prison rules. Davis v. Runnels, 4 No. CIV S-05-1898 FCD EFB P, 2011 U.S. Dist. LEXIS 60680, at *9 (E.D. Cal. June 7, 2011). 5 Plaintiff’s previous claim against Anderson – that he had failed to protect plaintiff from Rojas’s 6 attack – was dismissed in the court’s prior screening order because plaintiff had not stated facts 7 showing that Anderson was aware that Rojas posed a risk of harm to plaintiff and intentionally 8 ignored that risk. ECF No. 9 at 3. Thus, the court has provided plaintiff two opportunities to 9 state a viable claim against Anderson. Out of deference to plaintiff’s incarceration, pro se status, 10 and language issues, the court will grant plaintiff one last opportunity to file an amended 11 complaint to attempt to state a viable claim against Anderson. Plaintiff is not obligated to amend 12 his complaint, though; he may elect instead to proceed on his first amended complaint with his 13 claim against Sadler only. 14 If plaintiff elects to file a second amended complaint, that pleading must identify as a 15 defendant only persons who personally participated in a substantial way in depriving him of a 16 federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 17 subjects another to the deprivation of a constitutional right if he does an act, participates in 18 another’s act or omits to perform an act he is legally required to do that causes the alleged 19 deprivation). 20 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 21 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 22 Any amended complaint must be written or typed so that it so that it is complete in itself 23 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 25 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 26 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 27 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 28 1967)). WAG 2A UV VUE □□ OPENS EP MVOC oe POR ae AY
1 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 2 || Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 3 || See E.D. Cal. L.R. 110. 4] WI. Order 5 For the foregoing reasons, it is HEREBY ORDERED that: 6 1. Plaintiff’s January 29, 2020 motion for appointment of counsel (ECF No. 16) is denied 7 without prejudice. 8 2. Plaintiff's amended complaint states, for screening purposes, a potentially cognizable 9 excessive force claim against defendant Sadler. 10 3. All other claims are dismissed with leave to amend within 30 days from the date of 11 service of this order. Plaintiff is not obligated to amend his complaint. 12 4. Within thirty days, plaintiff shall return the notice below advising the court whether he 13 elects to proceed with the cognizable claim or file a second amended complaint. If the 14 former option is selected and returned, the court will enter an order directing service on 15 defendant Sadler at that time. 16 5. Failure to comply with any part of this this order may result in dismissal of this action. 17 | DATED: April 15, 2020. 18 tid, PDEA 19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ROGELIO MAY RUIZ, No. 2:19-cv-0-147-TLN-EFB P 10 Plaintiff, 11 v. NOTICE OF INTENT TO PROCEED OR AMEND 12 C. SADLER, et al., 13 Defendants. 14 15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 16 17 18 (1) ______ proceed only with his excessive force claim against defendant Sadler; 19 20 OR 21 (2) ______ delay serving any defendant and file a second amended complaint. 22 23 _________________________________ 24 Plaintiff 25 Dated: 26 27 28