1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EDWARD SMITH, No. 2:21-cv-00877-CKD P 12 Plaintiff, 13 v. ORDER 14 SHASTA COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff, a former county inmate currently in state custody, is proceeding pro se in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court 19 by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Motion to Appoint Counsel 2 Plaintiff filed a motion requesting the appointment of counsel. District courts lack 3 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 4 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 5 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 6 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 7 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 8 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 9 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 10 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 11 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 12 Circumstances common to most prisoners, such as lack of legal education and limited law library 13 access, do not establish exceptional circumstances that warrant a request for voluntary assistance 14 of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff has failed to 16 meet his burden of demonstrating exceptional circumstances warranting the appointment of 17 counsel at this time. 18 II. Screening Requirement 19 The court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 21 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 22 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 23 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 1 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 2 Cir. 1989); Franklin, 745 F.2d at 1227. 3 In order to avoid dismissal for failure to state a claim a complaint must contain more than 4 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 5 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 6 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 8 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 9 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 10 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 11 at 678. When considering whether a complaint states a claim upon which relief can be granted, 12 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 13 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 14 U.S. 232, 236 (1974). 15 III. Allegations in the Complaint 16 Plaintiff is requesting monetary damages and injunctive relief for witnessing the beating 17 of another inmate while a pretrial detainee at the Shasta County Jail. After being forcibly 18 removed from plaintiff’s cell, the other inmate died while in custody. Plaintiff also alleges that he 19 was denied adequate mental health and medical services while a county inmate. Named as 20 defendants are three correctional officers, the Shasta County Jail, the Shasta County Sheriff’s 21 Department, the California Forensic Medical Group, Well Path Medical, the Shasta County 22 Superior Court, the Shasta County District Attorney’s Office, the El Monte Law Group, and Does 23 1-20. 24 IV. Legal Standards 25 The following legal standards are being provided to plaintiff based on his pro se status as 26 well as the nature of the allegations in his complaint. 27 A. Linkage Requirement 28 The civil rights statute requires that there be an actual connection or link between the 1 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 2 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 3 (1976).
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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 JAMES EDWARD SMITH, No. 2:21-cv-00877-CKD P 12 Plaintiff, 13 v. ORDER 14 SHASTA COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff, a former county inmate currently in state custody, is proceeding pro se in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court 19 by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Motion to Appoint Counsel 2 Plaintiff filed a motion requesting the appointment of counsel. District courts lack 3 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 4 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 5 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 6 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 7 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 8 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 9 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 10 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 11 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 12 Circumstances common to most prisoners, such as lack of legal education and limited law library 13 access, do not establish exceptional circumstances that warrant a request for voluntary assistance 14 of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff has failed to 16 meet his burden of demonstrating exceptional circumstances warranting the appointment of 17 counsel at this time. 18 II. Screening Requirement 19 The court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 21 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 22 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 23 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 1 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 2 Cir. 1989); Franklin, 745 F.2d at 1227. 3 In order to avoid dismissal for failure to state a claim a complaint must contain more than 4 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 5 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 6 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 8 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 9 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 10 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 11 at 678. When considering whether a complaint states a claim upon which relief can be granted, 12 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 13 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 14 U.S. 232, 236 (1974). 15 III. Allegations in the Complaint 16 Plaintiff is requesting monetary damages and injunctive relief for witnessing the beating 17 of another inmate while a pretrial detainee at the Shasta County Jail. After being forcibly 18 removed from plaintiff’s cell, the other inmate died while in custody. Plaintiff also alleges that he 19 was denied adequate mental health and medical services while a county inmate. Named as 20 defendants are three correctional officers, the Shasta County Jail, the Shasta County Sheriff’s 21 Department, the California Forensic Medical Group, Well Path Medical, the Shasta County 22 Superior Court, the Shasta County District Attorney’s Office, the El Monte Law Group, and Does 23 1-20. 24 IV. Legal Standards 25 The following legal standards are being provided to plaintiff based on his pro se status as 26 well as the nature of the allegations in his complaint. 27 A. Linkage Requirement 28 The civil rights statute requires that there be an actual connection or link between the 1 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 2 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 3 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 4 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 5 in another's affirmative acts or omits to perform an act which he is legally required to do that 6 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 7 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 8 link each named defendant with some affirmative act or omission that demonstrates a violation of 9 plaintiff's federal rights. 10 B. Deliberate Indifference to a Serious Medical Need 11 Denial or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble, 12 429 U.S. 97, 104-05 (1976). A violation occurs when a prison official causes injury as a result of 13 his or her deliberate indifference to a prisoner’s serious medical needs. Id. 14 A plaintiff can show a “serious medical need” by demonstrating that “failure to treat a 15 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 16 infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 17 104. “Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable 18 doctor or patient would find important and worthy of comment or treatment; the presence of a 19 medical condition that significantly affects an individual’s daily activities; or the existence of 20 chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) citing 21 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). 22 “Deliberate indifference” includes a purposeful act or failure to respond to a prisoner’s 23 pain or possible medical need. Jett, 439 F.3d at 1096. 24 A showing of merely negligent medical care is not enough to establish a constitutional 25 violation. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105- 26 106. A difference of opinion about the proper course of treatment is not deliberate indifference, 27 nor does a dispute between a prisoner and prison officials over the necessity for or extent of 28 medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, 2 mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate 3 medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 4 1985). Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, 5 the prisoner must show that the delay caused “significant harm and that defendants should have 6 known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); see 7 McGuckin, 974 F.2d at 1060. 8 C. Immunity 9 The Supreme Court has held that judges acting within the course and scope of their 10 judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 11 386 U.S. 547 (1967). A judge is “subject to liability only when he has acted in the ‘clear absence 12 of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7 (1978), quoting Bradley v. Fisher, 13 13 Wall. 335, 351 (1872). A judge’s jurisdiction is quite broad. The two-part test of Stump v. 14 Sparkman determines its scope: 15 The relevant cases demonstrates that the factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act 16 itself, i.e., whether it is a function normally performed by a judge and to the expectation of the parties, i.e., whether they dealt with the 17 judge in his judicial capacity. 18 Id. at 361. 19 Likewise, prosecutors are absolutely immune from civil suits for damages under § 1983 20 which challenge activities related to the initiation and presentation of criminal prosecutions. 21 Imbler v. Pachtman, 424 U.S. 409 (1976). Determining whether a prosecutor’s actions are 22 immunized requires a functional analysis. The classification of the challenged acts, not the 23 motivation underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 24 793 F.2d 1072 (9th Cir. 1986) (en banc). The prosecutor’s quasi-judicial functions, rather than 25 administrative or investigative functions, are absolutely immune. Thus, even charges of 26 malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment 27 of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. 28 Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984). 1 D. Municipal Liability 2 Also, municipalities cannot be held vicariously liable under § 1983 for the actions of their 3 employees. Monell v. Dep’t of Social Services, 436 U.S. 585 at 691, 694 (1978). “Instead, it is 4 when execution of a government's policy or custom, whether made by its lawmakers or by those 5 whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the 6 government as an entity is responsible under § 1983.” Id. at 694. 7 V. Analysis 8 It appears to the court that plaintiff has utilized a complaint drafted by an attorney in a 9 different case to initiate the instant civil action. Compare ECF No. 1 in Smith v. Shasta County, 10 Case No. 2:20-cv-01837-KJM-DMC (E.D. Cal. 2020). It refers to different individuals and 11 entities than those listed in the case caption of plaintiff’s pro se complaint. To the extent that 12 plaintiff is seeking to enforce the constitutional rights of a third party, i.e. Teddy Abbie, these 13 claims are not actionable. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 14 (9th Cir. 1998) (stating that “the survivors of an individual killed as a result of an officer's 15 excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the 16 relevant state's law authorizes a survival action.”). Plaintiff does not demonstrate that he is 17 related to Mr. Abbie or is his successor-in-interest to be allowed to sue on his behalf.1 See Cal. 18 Code Civ. P. § 377.30 et seq. The remainder of the allegations in plaintiff’s complaint are 19 entirely conclusory and deprive defendants of any notice of what specific actions each one took 20 that resulted in the purported constitutional violations. See Starr v. Baca, 652 F.3d 1202, 1216 21 (9th Cir. 2011) (stating that a complaint “must contain sufficient allegations of underlying facts to 22 give fair notice and to enable the opposing party to defend itself effectively.”). Under the federal 23 notice pleading standard, a complaint is required to contain “a short and plain statement of the 24 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While the court 25 construes pro se pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), the court 26
27 1 It appears that Mr. Abbie’s successor-in-interest has initiated a separate civil action related to his death while in custody at the Shasta County Jail. See Abbie et al., v. Shasta County, et al., 28 Case No. 2:20-cv-01995-KJM-DMC (E.D. Cal.). 1 is not required to accept conclusory assertions cast in the form of factual allegations as true. See 2 Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. For all these reasons, the court finds that the 3 complaint fails to state a claim upon which relief can be granted under federal law. Plaintiff’s 4 complaint must be dismissed. The court will, however, grant leave to file an amended complaint, 5 not exceeding twenty-five pages in length, including any exhibits. 6 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 7 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 8 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 9 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 10 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 11 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 12 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 13 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 14 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 15 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 16 complaint be complete in itself without reference to any prior pleading. This is because, as a 17 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 18 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 19 longer serves any function in the case. Therefore, in an amended complaint, as in an original 20 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 21 VI. Plain Language Summary for Pro Se Party 22 The following information is meant to explain this order in plain English and is not 23 intended as legal advice. 24 The court has reviewed the allegations in your complaint and determined that they do not 25 state any claim against the defendants. Your complaint is being dismissed, but you are being 26 given the chance to fix the problems identified in this screening order. 27 Although you are not required to do so, you may file an amended complaint within 30 28 days from the date of this order. If you choose to file an amended complaint, pay particular 1 | attention to the legal standards identified in this order which may apply to your claims. 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiffs motion for the appointment of counsel (ECF No. 11) is denied without 5 || prejudice. 6 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 7 || shall be collected and paid in accordance with this court’s order to the Director of the California 8 | Department of Corrections and Rehabilitation filed concurrently herewith. 9 4. Plaintiff's complaint is dismissed. 10 5. Plaintiffis granted thirty days from the date of service of this order to file an amended 11 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 12 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 13 || number assigned this case and must be labeled “Amended Complaint.” The amended complaint 14 | shall not exceed twenty-five pages in length, including any exhibits. Failure to file an 15 || amended complaint in accordance with this order will result in a recommendation that this action 16 || be dismissed. 17 | Dated: September 1, 2021 fi 20 } Kt | Ld , a he 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 12/smit0877.14+3 1.docx 26 27 28