1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY SCOTT VAN HUISEN, No. 2:23-cv-02900-DJC-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 18 42 U.S.C. § 1983. Plaintiff has also filed a motion for appointment of counsel, a motion to 19 proceed in forma pauperis, and a motion for status and to allow the action to proceed on 20 plaintiff’s fourth amended complaint. For the reasons that follow, plaintiff’s motion for 21 appointment of counsel will be denied, his motion to proceed in forma pauperis will be granted, 22 his motion for status will be denied, and the fourth amended complaint will be dismissed with 23 leave to amend. 24 Motion for Appointment of Counsel 25 District courts lack authority to require counsel to represent indigent prisoners in section 26 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 27 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 1 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 2 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 3 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 4 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 5 the court finds there are no exceptional circumstances in this case. 6 Motion to Proceed In Forma Pauperis 7 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 8 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 9 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 10 1915(b)(1) and (2). 11 Motion for Status 12 Plaintiff has filed a motion for status and to proceed on the fourth amended complaint. 13 ECF No. 14. As this order serves as a status update and screens the fourth amended complaint, 14 the motion will be denied as moot. 15 Screening Standards 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 18 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 19 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 20 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 21 relief.” Id. § 1915A(b). 22 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a 23 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other 24 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be 25 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] 26 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, 27 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) 28 (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) 1 allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as 2 facts describing “fantastic or delusional scenarios.” Id. at 327-38. 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 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Discussion 24 Plaintiff is an inmate at Mule Creek State Prison. ECF No. 14 at 1. He sues the 25 California Department of Corrections and Rehabilitation, CDCR Secretary Jeff Macomber, and 26 three correctional officers. Id. The fourth amended complaint is largely a compilation of 27 incomprehensible statements. Having read through it, the court can identify only two potential 28 federal claims: (1) that defendant Landreth retaliated against plaintiff by falsifying a rules 1 violation report against him for plaintiff’s “attempts to protect and defend the eagle at this point,” 2 (id. at 16) and (2) that defendant Beckham deprived plaintiff of due process during a prison 3 disciplinary hearing “by mal-afide [sic] verdicts, an improper measure” (id. at 17). These claims 4 are not cognizable.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY SCOTT VAN HUISEN, No. 2:23-cv-02900-DJC-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 18 42 U.S.C. § 1983. Plaintiff has also filed a motion for appointment of counsel, a motion to 19 proceed in forma pauperis, and a motion for status and to allow the action to proceed on 20 plaintiff’s fourth amended complaint. For the reasons that follow, plaintiff’s motion for 21 appointment of counsel will be denied, his motion to proceed in forma pauperis will be granted, 22 his motion for status will be denied, and the fourth amended complaint will be dismissed with 23 leave to amend. 24 Motion for Appointment of Counsel 25 District courts lack authority to require counsel to represent indigent prisoners in section 26 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 27 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 1 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 2 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 3 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 4 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 5 the court finds there are no exceptional circumstances in this case. 6 Motion to Proceed In Forma Pauperis 7 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 8 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 9 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 10 1915(b)(1) and (2). 11 Motion for Status 12 Plaintiff has filed a motion for status and to proceed on the fourth amended complaint. 13 ECF No. 14. As this order serves as a status update and screens the fourth amended complaint, 14 the motion will be denied as moot. 15 Screening Standards 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 18 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 19 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 20 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 21 relief.” Id. § 1915A(b). 22 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a 23 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other 24 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be 25 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] 26 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, 27 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) 28 (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) 1 allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as 2 facts describing “fantastic or delusional scenarios.” Id. at 327-38. 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 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Discussion 24 Plaintiff is an inmate at Mule Creek State Prison. ECF No. 14 at 1. He sues the 25 California Department of Corrections and Rehabilitation, CDCR Secretary Jeff Macomber, and 26 three correctional officers. Id. The fourth amended complaint is largely a compilation of 27 incomprehensible statements. Having read through it, the court can identify only two potential 28 federal claims: (1) that defendant Landreth retaliated against plaintiff by falsifying a rules 1 violation report against him for plaintiff’s “attempts to protect and defend the eagle at this point,” 2 (id. at 16) and (2) that defendant Beckham deprived plaintiff of due process during a prison 3 disciplinary hearing “by mal-afide [sic] verdicts, an improper measure” (id. at 17). These claims 4 are not cognizable. 5 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege 6 facts showing five elements: (1) that a state actor took some adverse action against him (2) 7 because of (3) his protected conduct, (4) that such action chilled his exercise of his First 8 Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional 9 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not allege 10 that his speech was actually inhibited or suppressed, but merely that the defendant’s conduct was 11 such as would chill or silence a person of ordinary firmness from future First Amendment 12 activities. Id. at 568-69. Plaintiff has not alleged comprehensible protected conduct (i.e., conduct 13 that is protected by the First Amendment), that Landreth issued the rules violation report in 14 response to that conduct, that the rules violation report chilled plaintiff’s exercise of First 15 Amendment rights or would have such a chilling effect on a person of ordinary firmness, or that 16 Landreth’s conduct did not reasonably advance a legitimate correctional goal. 17 While “prisoners do not shed all constitutional rights at the prison gate, . . . lawful 18 incarceration brings about the necessary withdrawal or limitation of many privileges and rights . . 19 . .” Sandin v. Conner, 515 U.S. 472, 485 (1995) (internal quotations and citations omitted). 20 “Discipline by prison officials in response to a wide range of misconduct falls within the expected 21 parameters of the sentence imposed by a court of law.” Id. In a prison setting, a liberty interest is 22 recognized and protected where the conditions of confinement impose a hardship that is atypical 23 and significant in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 485. When 24 prison officials deprive an inmate of a protected liberty interest, they must provide certain 25 procedural safeguards, which often include a right to present evidence. Wolff v. McDonnell, 418 26 U.S. 539, 556 (1974); Melnick v. Dzurenda, 14 F.4th 981, 985 (9th Cir. 2021). Plaintiff has not 27 alleged facts showing that he was deprived of a protected liberty interest or that Beckham 28 deprived him of required procedural safeguards. 1 A complaint that is frivolous, malicious, or fails to state a claim cannot survive screening 2 under section 1915A(b) and must be dismissed. A claim is frivolous “when the facts alleged arise 3 to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable 4 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when 6 applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful 7 factual allegation.”). Plaintiff’s remaining allegations are largely indecipherable and, as currently 8 drafted, frivolous. 9 In an abundance of caution, plaintiff will be given an opportunity to amend his complaint 10 to cure the deficiencies. 11 Leave to Amend 12 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an 13 amended complaint it should observe the following: 14 Any amended complaint must identify as a defendant only persons who personally 15 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 16 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 17 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 18 legally required to do that causes the alleged deprivation). The complaint should also describe, 19 in sufficient detail, how each defendant personally violated or participated in the violation of his 20 rights. The court will not infer the existence of allegations that have not been explicitly set forth 21 in the amended complaint. 22 The amended complaint must contain a caption including the names of all defendants. 23 Fed. R. Civ. P. 10(a). 24 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 25 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 26 Any amended complaint must be written or typed so that it so that it is complete in itself 27 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 28 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 1 || earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 2 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 3 | being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 4 || 1967)). 5 Finally, the court notes that any amended complaint should be as concise as possible in 6 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 7 || statements which have no bearing on his legal claims and, to the extent possible, simply provide 8 || the facts of the incidents of which he complains (i.e., when the incident happened, who was 9 | involved, and how the incident unfolded). 10 Conclusion 11 Accordingly, IT IS ORDERED that: 12 1. Plaintiffs application to proceed in forma pauperis (ECF Nos. 4, 7) is GRANTED; 13 2. Plaintiff's motion for the appointment of counsel (ECF No. 3) is DENIED without 14 prejudice; 15 3. Plaintiffs motion for status (ECF No. 19) is DENIED; 16 4. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 17 accordance with the notice to the custodial agency filed concurrently herewith; 18 5. Plaintiff’s fourth amended complaint (ECF No. 14) is DISMISSED with leave to 19 amend within 30 days from the date of service of this order; and 20 6. Failure to comply with this order may result in dismissal of this action for the reasons 21 stated herein. ao fe ZL Pos 23 || Dated: September 30, 2024 Satie A LT bE a = Sie Sn 7, □ 24 UNITED PrATES MAGHATRATS INGE 25 26 27 28